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Episode Six: All things Industrial Action w/Campbell Smith
233 Plays2 years ago
In this episode Kate & Tony talk to Campbell Smith of the NTEU's National Industrial Legal Team about all things industrial action.
Last year members endorsed a motion to move towards industrial action if the University didn't put forward a satisfactory pay offer by the end of January and shamefully they have failed to do that. So with our first all-members meeting for the year scheduled for today (Feb 7th) to vote on taking industrial action, we thought it would be good to have someone on who could run us through the process of what taking industrial action looks like, and answer some of the FAQs about it.
A reminder again to please take a minute to check your details are correct via the Members Portal at www.nteu.au so that you can keep up to date with everything as we begin to move towards industrial action in the face of the Universities unwillingness to even discuss the most pressing issue for so many of us.
If you have questions about the process you'd like answered, or any topics you would like to hear covered on the podcast, drop us an email at myunionwroteaneba@gmail.com
You can stay up to date with everything happening with bargaining and at the branch by following us on social media:
Facebook - https://www.facebook.com/NTEUMonashBranch
Twitter - https://mobile.twitter.com/nteumonash
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Transcript
Introduction to Enterprise Bargaining at Monash
00:00:18
Speaker
G'day, everyone, and welcome to My Union Road and EBA. This is a podcast to chronicle the progress towards a new enterprise bargaining agreement at Monash University and is brought to you by members of the Monash branch of the NTEU. We're here to take the old agreement and hashtag change it. And unlike our namesake, my dad wrote a porno, do everything we can to avoid being fucked in the process.
Acknowledgement of Country
00:00:41
Speaker
Those involved with the podcast would like to acknowledge that it is being recorded on the unsaid lands of the Kulin nations,
00:00:47
Speaker
on whose lands we live, teach, and work. We would like to acknowledge and pay our respects to the traditional custodians and elders past and present, and to the continuation of the cultural, spiritual, and educational practices of Aboriginal and Torres Strait Islander peoples. Always was, always will be, Aboriginal land.
Expired Agreement and Vice Chancellor's Earnings
00:01:08
Speaker
Hi, everyone.
00:01:09
Speaker
I am Adam Fernandes, your National Counsellor of the Monash Branch. It has been 218 days since our Enterprise Agreement expired, and in that time, our beloved Vice Chancellor has earned $716,566.
00:01:27
Speaker
That's roughly $3,287 a day or $23,000 a week. I guess it's easy to make this much when you withhold the wages from your teaching staff and a pay rise from all your staff. That's it for me. Tune into our podcast next time for another episode of How to Get Away with Witch Theft.
Lack of Pay Offers and Industrial Action Introduction
00:01:47
Speaker
So this week we're talking all things industrial action.
00:01:50
Speaker
As folks may remember in an old members meeting last year, we endorsed a motion about applying for a protected action ballot order, aka a parbo, if Monash didn't come forward with a pay offer by the end of January. Well, that has come and gone and they've not offered us anything, even as the VCs pay since the beginning of bargaining is now pushing close to a million dollars.
00:02:09
Speaker
So to help everyone get their heads around what comes next, we've invited Campbell Smith from the NTU's National Industrial Legal Team along to talk to Kate and I and to you. So welcome Campbell.
Role of NTU's National Industrial Legal Team
00:02:20
Speaker
Can you maybe start by introducing yourself and telling us what you do and what the National Industrial Legal Team is and does?
00:02:26
Speaker
Thanks a lot, Tony. My name's Campbell Smith. I'm a National Industrial Officer in our National Industrial and Legal team. I've been with the union for about five years. I'm a qualified practicing solicitor and I'm responsible for oversight on our industrial action around the country. Thanks so much for coming and talking to us, Campbell. We just thought we may as well start off at the very kind of basic level.
Understanding Industrial Action under Fair Work Act
00:02:56
Speaker
What is industrial action and why would someone need to take industrial action? So under the Fair Work Act, industrial action has quite a technical definition of what it is and what it is not. And so it encompasses a range of things that people would be familiar with, like going out on strike.
00:03:18
Speaker
that's a sort of stoppage of work under the Act or a refusal to perform any work if you attend for work. But it also encompasses things like adopting a practice in relation to the performance of your work, which creates a delay, limitation or restriction in the performance of the work.
00:03:36
Speaker
things like one that's quite popular would be sending emails that have messages of support of the union's claims. And that creates a limitation or restriction or delay in the performing of work because you're taking time out of the work that you're normally performing in order to do things that are in support of the union's claims.
00:04:01
Speaker
And the third way that an employee can take industrial action is to put a ban or restriction on the type of work that would be performed or the way that work is performed. So you might say we're going to ban performing any work unless we're wearing campaign t-shirts or something like that.
00:04:21
Speaker
In relation to your second question about why someone would need to take it, I think it really is the only arrow in our quiver in terms of what we can do to push an employer to make concessions in their bargaining position.
00:04:38
Speaker
It's a bit of an adage I think amongst industrial officers that clever arguments at the table only get you so far. If you can't persuade a management that doesn't want to give you something, then industrial action provides that extra pressure to get a claim across the line.
00:04:53
Speaker
Yeah, and that's exactly what I think we're all feeling on One Ash at the moment, so very apt adage there. And can you give us a bit of an idea, like you've sort of mentioned some of the forms of industrial action that people can take already or that are sort of possible under the scope of the legislation.
Types of Industrial Action for Staff
00:05:08
Speaker
Can you maybe give us an idea of the kinds of industrial action that different kinds of employees can take, so the difference between like the sort of stuff that an academic member of staff might be able to do versus a professional member of staff?
00:05:21
Speaker
It's a really good question. So I think we've really thought very carefully over a long period of time about the types of things that each sort of cohort of staff might be able to engage in industrial action in a way that would be protected. And I think a good example would be going back to the example I used about making statements in support of the union's bargaining claims. So for an academic staff member,
00:05:48
Speaker
that might mean at a lecture they'll spend 15 minutes instead of delivering relevant teaching content. They'll just give a presentation to students about management's position in bargaining and why the NTU believes that these claims that we're asking for are really important for staff to achieve. But that same type of action could be used by a professional staff member, say if you're in a meeting
00:06:16
Speaker
like a local area meeting and someone asks your question, you know, what do you think about this project that we're working on? Your response could be a five-minute answer, completely irrelevant to that question, only in support of the union's bargaining claim. So the sort of questions that we generally use have been framed in that way to try to have the sort of broadest amount of scope so that everyone can participate.
00:06:39
Speaker
Cool, that sounds really interesting. The other thing we kind of wanted to get an idea on is are there any sort of limits to what types of industrial action can be taken?
Historical Limits and Examples of Industrial Action
00:06:49
Speaker
And are there any that in the past we haven't been able to do?
00:06:52
Speaker
The answer is a bit complicated in that first you need to meet that definition of industrial action. If something doesn't meet that definition, then it's not industrial action. I think that the example of email footers is an interesting one that might not necessarily be obvious to most people. But the other question is,
00:07:14
Speaker
another provision of the Fair Work Act which allows for an employer to make an application to the Fair Work Commission stopping industrial action, so something that falls within that definition and would otherwise be legal, if it, amongst other things, would create a risk to the health, safety and welfare of the population or a part of it.
00:07:37
Speaker
and I think members of Monash will be familiar with this because going back to 2013 where there was a marking ban in place and Monash objected to that or made the application for an order on the basis that
00:07:53
Speaker
a prolonged and indefinite marking ban would create a risk to the health, safety and welfare of the student population and the full bench in that case sided with the employer in a way that makes it really difficult for us to engage in that type of industrial action
00:08:13
Speaker
And the way that we've done it in the past is to have exemptions because you know I think every NTEU member would be really reluctant to do any type of industrial action that's going to lead to harm on students. So the exemption process was found to not be sufficient because the university led evidence to say well a disengaged and failing student
00:08:38
Speaker
who's in a sort of vulnerable mental health space is unlikely to be checking their emails, understand the exemption process and therefore be able to get an exemption. So that really sort of restricted our ability to take industrial action around market bans. Yeah, that's really interesting. I think that's sort of
00:09:01
Speaker
an example maybe of the university sort of trying to find a crack and then trying to sort of blow it wide open to further their own end.
Process of Taking Protected Industrial Action
00:09:09
Speaker
So I guess the next sort of hill to broach maybe is what steps need to be taken to be able to take industrial action? Can we just sort of jump into it and start? And I guess is there a sort of, has that process changed over time?
00:09:24
Speaker
So the process by which you get to take protected industrial action, which I think it's important to distinguish between unprotected and protected industrial action. So the process for taking protected industrial action is a long and quite technical process. You have to make an application to the Commission.
00:09:49
Speaker
you have to be able to show that you're genuinely trying to reach agreement, which means a number of things. Firstly, it means that you've outlined the major items that you're looking for for inclusion in the new agreement. But also there's a sort of technical process where or concept where the Fair Work Commission has said that you won't be genuinely trying to reach agreement if you're pursuing claims that
00:10:15
Speaker
are either unlawful terms or non-permitted matters or things that aren't capable of being included in an enterprise agreement. So once you've met that test then there's an opportunity for an employer to object to particular questions on the basis that they either couldn't be industrial action or they're framed in a way that
00:10:39
Speaker
they say an employee isn't that capable of understanding them. And that often leads to quite absurd results where an employer objects. We had one recently in late last year where the university's lawyers were arguing that no one could possibly understand what it means to respond to a phone call.
00:11:02
Speaker
So, you know, it is an opportunity, I think, for some quite opportunistic and cynical objections designed only to slow down the union's ability to take industrial action. Then once you get that application made, the process is that there is a ballot of all of eligible members. And in order for that ballot to get up, you need to get out at least 50 percent of the eligible members to vote. And then each item of industrial action that's on that order
00:11:31
Speaker
needs to also get more than 50% support. Once you've done that, then you're in the stage of being able to notify protected industrial action. So the university has the opportunity to get ready or to prepare for that action. There are a lot of hoops to jump through to get there, but that's the process.
00:11:54
Speaker
And so, sorry, just one quick follow up question to that with in terms of the notifying the university of the intention to take action, could we just notify them on the first day that we're going to
Notice Requirements for Industrial Action
00:12:04
Speaker
do it? You have to to give them three days notice. So if you're going to say if you want to go on strike on Friday, you have to send them a formal notice on the Monday to say that that's going to occur. So it sounds like the process of
00:12:18
Speaker
getting to the point of being able to do industrial action is pretty onerous on the union and it seems pretty limiting in what the union can do.
History and Complexity of Industrial Action Laws
00:12:27
Speaker
And I was wondering, Campbell, if you could give us an idea about the history of industrial action and industrial action law in Australia. Has it always been this difficult for unions to take industrial action?
00:12:38
Speaker
It's a really good question and it sort of shows how I think the invention of the idea of protected industrial action has actually made industrial action a lot more difficult to take. And my understanding is that the
00:12:55
Speaker
concept was introduced in the Workplace Relations Act, which was the act prior to the Fair Work Act. And that sort of created this regime of protected action ballot orders.
00:13:08
Speaker
Prior to that, there was no concept of protected industrial action, but sort of counterintuitively, you see that the Productivity Commission tracks days lost to industrial action. And when there was no right to take protected industrial action, the rates or days lost to industrial action were a lot higher than they are now, because it used to be
00:13:33
Speaker
If you're in the bargaining process or if you were in some other dispute with your employer, a shop steward or delegate would come down and say, all right, you know, we've had enough of this, everybody out, you know, we're going on strike until the employer sees sense. These days, with all the hoops that we have to jump through, it's actually led to fewer days of productivity being lost to industrial action. So that's sort of the situation that we're in now.
00:14:01
Speaker
Is the notion of protected industrial action unique to Australia or is that sort of internationally something that is in other countries as well?
International Comparisons on Industrial Action Laws
00:14:10
Speaker
Well you're really putting me on the spot here but my understanding is that the International Labor Organization conventions say that there is a right to take industrial action and that those rights should be enshrined in the laws of the countries that are signed up to those conventions so
00:14:29
Speaker
My understanding is that protected industrial action is a relatively common right in developed countries. But I think we have a particularly restrictive regime when it comes to actually taking industrial action. Cool. Sorry for putting you on the spot.
00:14:46
Speaker
No, no, I guess. And the reason that that is is because, you know, our rights to take protected industrial action is sort of confined by by the legal regime, but also the requirement that you can only take protected industrial action during a bargaining period. So, you know, there's no right to to get a protected action ballot around a dispute with your employer or something like that. It can only be in support of claims in bargaining.
University Responses to Industrial Action
00:15:13
Speaker
I think that kind of leads us nicely into the next bit is that if we have this notion of protected action that is sort of enshrined in law that people undertaking that action would have an expectation of sort of legal protections from punishment for that. What can we reasonably expect the university's response to industrial action to be? Can the university punish people for taking part in industrial action? Can they sort of lose their job or have their paid off?
00:15:39
Speaker
So that is a really good question and there's sort of a few ways that the university can respond to our industrial action. Some of them are sort of within their discretion and some of them aren't. So if you're taking industrial action in the form of a work stoppage, so if you're going out on strike, if you're refusing to perform any work at all, the university doesn't have a choice and they're not allowed to pay you for the time that you're
00:16:06
Speaker
doing that, so they have to docu-pay for the length of the strike and it's illegal for a union or an employee to ask for payment for that period. But the situation is a little bit different for the other types of industrial actions, so they're referred to as partial work bands.
00:16:27
Speaker
In that situation, the university has three options. The first one is they can do nothing. They can say, fair enough. It's your right to engage in industrial action. We'll sort of wear it and continue to pay you as normal.
00:16:42
Speaker
The second option is for them to say, well, we're going to make an assessment of how much time we think you're going to do, you would normally spend in any given day doing that particular activity. So if we take the example of the, you know,
00:17:01
Speaker
lecturer giving a presentation to students about the union's claims, they'd say, well, we think that would be about 15 minutes and we'll dock your pay by 15 minutes for every time you engage in that action.
00:17:13
Speaker
The third option that they have is to say, we're not going to accept any work from you while you're engaging in the industrial action. And we're not going to pay you for that time until and you're not allowed to attend for work until you are ready to come and do all of your duties as normal.
00:17:32
Speaker
But I guess in terms of punishment, if you think about allegations of misconduct or disciplinary proceedings or anything like that, you're protected from any repercussions in your employment. You can't be performance managed because you didn't get work done that was subject of a ban. You can't be done for misconduct for anything that you've done or for refusing to do duties that were the subject of industrial action. But I think people should be aware that
00:18:02
Speaker
that doesn't necessarily apply to things that you do in the course of undertaking industrial action. So there's a famous case from the High Court, I believe it was in 2013, and it's referred to as the SCABs case. And that was a case where members of an employer were out on strike, and one of them had a, and they were having a picket of the employer,
00:18:31
Speaker
And one of the employees had a sign that said, I think it was scabs, no guts or something like that. And he was brought up on charges of misconduct for breaching the code of conduct. And the High Court in a decision that really I think splits hairs says that
00:18:52
Speaker
He wasn't disciplined for engaging in industrial action. He was disciplined for the conduct he engaged in while he was engaging in industrial action and that wasn't protected. So there is that sort of issue of making a distinction between being disciplined for engaging in industrial action and sort of conduct that you engage in while you're engaged in industrial action.
00:19:20
Speaker
Wow, that is one hell of a case. The other question that we had was, who can actually take part in industrial action once the members of Monash Union vote for it? Are there any restrictions?
Eligibility for Engaging in Industrial Action
00:19:35
Speaker
So the people who can engage in industrial action are those people on whose behalf we've made the application. So the people who are described in the protected action ballot order.
00:19:46
Speaker
And that would normally be members of the NTU who are employed by Monash University. So if you're not a member of the NTU or if you're a member of another union, you're not entitled to engage in protected industrial action. So a good reminder to join up to the union if you haven't already. Always.
00:20:07
Speaker
And so does that also include if you're a member of the NTU but work at multiple universities and your NTU affiliation is to that other university, to Melbourne University or the tribe or something like that? The ballot wouldn't make a distinction between where you're designated to be a member under our rules. So it might be the case that for the purposes of our rules, you're a member of the Melbourne branch. But if you're also employed by Monash University,
00:20:34
Speaker
you're entitled to participate in that industrial action. Oh cool, that's good to know. And just another sort of question about the sort of nitty-gritty.
Part-time and Casual Staff Participation
00:20:44
Speaker
What if industrial action takes place on a day someone isn't actually working? So if you're a part-time staff member or casual staff member, can these people take part in industrial action as well?
00:20:54
Speaker
I think just as a matter of definition, if you're not working, you're not engaged in industrial action because you can't do a stoppage of work at a time that you're not working and you can't create that requisite restriction limitation or delay in the performance of your work if you're not working.
00:21:12
Speaker
And sort of part of that that scabs case is to say that engaging in a picket isn't actually industrial action. It's the stoppage of work that's your industrial action.
00:21:26
Speaker
That being the case, if you're not working on a day that is a strike day and there's a picket, I'd encourage you to get along and participate because that's not necessarily you engaging in industrial action, but it is showing the support and sending the message to management that we're serious about the claims that we're making. Yeah, absolutely. And I'd encourage that as well. Pickets are always really fun. So if you do have the day off, it's a great, great day to come chat with your colleagues and have a bit of fun while also
00:21:56
Speaker
helping the union with bargaining. Couldn't agree more. We've sort of got a good sense of the process of taking industrial action and who can take part in it.
Benefits and Power of Industrial Action
00:22:05
Speaker
What are the benefits of industrial action for members? Why is industrial action such a powerful tool for unions and union members? Well, as I said before, it really is the best way to send a message to management that the membership is behind the bargaining team and sort of showing that their operations and their business is going to be significantly disrupted until they come to the table on the claims that were demanding for inclusion in a new agreement.
00:22:35
Speaker
And secondly to that, I'd agree with you, Kate, it's a good way to sort of show your solidarity, get amongst it and show your support for the union and make sure that you're fighting for better terms and conditions for you and your colleagues. Great. Thanks very much. Do you have anything else that you'd like to add?
00:22:50
Speaker
Well, I guess I would just say to anyone who's unsure about or opposed to taking industrial action, I'd say the purpose of a protected action ballot is not to sign in blood your guarantee that you're going to engage in it.
00:23:05
Speaker
it's only to give the members of the branch the opportunity to take that industrial action. So even if you don't plan on taking it yourself, which I would encourage everyone to do it, but even if you don't plan on taking it yourself, it's really important that you vote yes on all of the questions so your colleagues can take that action on your behalf.
00:23:28
Speaker
That's what I'd say in relation to the ballot, but then if you're opposed to doing it, I'd really urge you to reconsider because it shouldn't just be the members of the branch committee or the members of the bargaining team that are putting themselves out there. There really is safety of numbers and there's a really powerful message in industrial action that shows how much solidarity there is amongst the membership.
00:23:55
Speaker
encourage everyone to get involved. Awesome, thanks Campbell and thank you for coming and letting us pick your brain about all things industrial action. I think it's really useful to be able to explain to members and particularly people whose sort of daily lives don't necessarily intersect with the mechanics of industrial action and unionism and that kind of thing what we have coming up and why it's important.
Conclusion and Future Topics
00:24:17
Speaker
So thank you for that.
00:24:19
Speaker
Very welcome. Thank you so much for having me. I've been listening to the pod and very much enjoying it, particularly Adam's updates about the VC's pay at the start of every episode. Pleasure to be involved.
00:24:30
Speaker
Thanks so much Campbell. Just also like to say that next week we'll be talking more specifically about parbos and how they work and hopefully talking to someone who has been through the process of a parbo before to give everybody a bit more of an idea. And just to also plug again, we've got that all members meeting on February the 7th, where we'll be voting on
00:24:55
Speaker
what actions go into the parvo and all that kind of stuff as well. And as always, if you've got any questions, please shoot us an email at myunionrodeneba at gmail.com. Thanks very much, everyone, and we'll see you all in two weeks. All right, folks, that's it for this episode. Thanks to Kate, Danny, Adam, Bernard, and Pod Daddy Sofio for all the work they've put into this, and we'll catch you next time.