Nurses Strike in NSW, Defying the Commission’s Ban

industrial action - strike Australia

Tens of thousands of nurses across New South Wales (NSW) walked off the job today in their first state-wide strike since 2013. The nurses are demanding staffing increases to address decades-long shortages, an end to a punitive pay cap that condemns them to effective wage cuts, and urgent improvements to their dire working conditions, which have been exacerbated by the COVID-19 pandemic. Significantly, the nurses proceeded with their action despite it being banned by the NSW Industrial Relations Commission (IRC), upholding an application by the state Liberal-National Coalition government. 

Health Minister Brad Hazzard met with representatives from the NSW Nurses and Midwives’ Association on 14 February 2022, but no agreement could be reached to address staffing issues and pay rates. NSW Health then sought the assistance of the Industrial Relations Commission, which resulted in the strike action being banned. “The IRC ordered the NSW Nurses and Midwives’ Association to immediately cease organising and refrain from taking any form of industrial action tomorrow,” a NSW Health spokesperson said. “It also must not authorise or encourage members of the union to organise or take industrial action.”

Right to strike - Australia

Are my rights to strike protected in the workplace? 

Whilst NSW Health is not covered by the FW Act, this recent strike action ban raises interesting points regarding workplace rights and industrial action. Industrial action can either be protected or unprotected. 

The concepts of protected action and a limited right to strike within a bargaining period were introduced in the Industrial Relations Reform Act 1993 (Cth). The Workplace Relations Act 1996 (Cth) then introduced prohibitions on industrial action during the life of an agreement and payment during strikes. 

The purpose of taking protected industrial action is so that employees or employers can support or advance their claims during bargaining in relation to a proposed enterprise agreement. The distinction between protected industrial action and unprotected industrial action is important due to the consequences that flow from the classification of the action. 

Where industrial action is ‘protected’, a limited immunity applies, meaning that the remedies that might otherwise be sought in relation to the industrial action are generally not available. Industrial action which is not protected may be stopped or prevented by the Fair Work Commission (the Commission) making orders, and the enforcement of those orders by the Court. State and Federal Courts also have powers under statute and the general law to grant remedies in relation to industrial action that is not protected.

Under section 19 of the FW Act, industrial action means the action of any of the following kinds: 

  • the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice which results in a restriction, or limitation on, or a delay in the performance of work 
  • a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee 
  • a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work, or 
  • the lockout of employees from their place of employment by the employer.

Industrial action does not include the following: 

  • action by employees that are authorised or agreed to by the employer of the employees 
  • action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer, or 
  • action by an employee if the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety, and the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether, at the same or another workplace, that was safe and appropriate for the employee to perform. 

The definition of industrial action under the FW Act is limited to conduct in connection to disputes of a particular kind and with bargaining. A note to the definition says that ‘Action will not be industrial in character if it stands completely outside the area of disputation and bargaining’. A Full Court of the Federal Court has recently observed that the note is a guide to interpretation only and that ‘[u]ultimately, the question posed by s 19(1) of the FW Act is whether action can be said to be “industrial” in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is “industrial”, but it is not determinative’. Employers may 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.

Can the Commission Ban Industrial Actions and Strikes?

Despite the FW Act’s seeming protection of workplace rights, the right to strike in the case of the NSW Health nurses was overruled by the NSWIRC. Similarly under the FW Act, in the case of unprotected industrial action, the Fair Work Commission has the power to make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period specified in the order. Such an order may contain provisions that seek to achieve that purpose in direct terms, and additional terms that are necessary for, incidental too, or consequential upon the exercise of power for that purpose. 

The Commission may make the order on its own initiative, or on application by: 

  • a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action, or
  • an organisation of which a person who is affected is a member. 

In making the order, the Commission does not have to specify the particular industrial action, however the order must be directed at the industrial action (existing or potential) which has been identified, and be sufficient to disclose the legal operation of the order and provide sufficient certainty to allow compliance with it.

The Commission’s power to make orders is limited to the industrial action that is the subject of the application before it. If the Commission is required to make an order stopping or preventing industrial action that was authorised by a protected action ballot: 

  • some or all of which has not been taken before the beginning of the stop period, or 
  • which has not ended before the beginning of that stop period, or 
  • beyond that stop period; the Commission may state in the order whether another protected action ballot is required before the action can be engaged in after the end of that stop period

If industrial action continues in contravention of the Commission’s order, the person or body affected by the contravention (i.e. NSW Health) can make an application to the courts for an enforcement of the Commission order. If the Court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision, the Court may make any order the Court considers appropriate. The maximum penalty that can be ordered by the court: is $12,600 (60 penalty units) for an individual and $63,000 for a body corporate (5 x 60 penalty units). 

Nurses strike - rights to strike

What other protections are available?

In this instance, the NSW nurses are at risk of being fined if the order is enforced. Nevertheless, the nurses have valid concerns regarding their employment and should be able to exercise their workplace right and strive for change. So if change cannot be achieved through a strike, what else could the nurses do?

Under the General Protections provisions in the FW Act, employers are prohibited from taking adverse action against an employee because the employee has a workplace right or has exercised a workplace right by way of complaint or enquiry. Examples of adverse action include termination, issuing the employee with a written warning, altering the employee’s roster and reducing their hours, reducing their status and level of responsibility or suspending the employee. Under the FW Act, a person has a workplace right if they are entitled to the benefit of a workplace law or instrument, has a role or responsibility under a workplace law or instrument, is able to initiate or participate in a process or proceedings under a workplace law or instrument and is able to make a complaint or inquiry to seek compliance with a workplace law or instrument. 

For example, NSW nurses complaining about inadequate pay, enquiring about pay rises and complaining about the lack of legislated staff to patient ratios, constitute the exercising of a workplace right and they are entitled to complain about this. An employer , such as NSW Health in this case, is therefore prohibited from taking any adverse action, such as dismissing the employees, because they have made these complaints and enquiries. 

The difficulty in this case arises out of the nurses defiant actions in the first place as they did attend the strike action despite the ban. Nevertheless, nurses deserve to be heard and changes are needed to prevent the loss of our valuable health professionals.

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