Legal experts have reminded public sector unions and their members just what they can do to protest work conditions through industrial action.

It is important for government agencies across all tiers to understand the possible responses to union action and pay issues for staff, so that their opposition falls within legal bounds.

Recently, the Community and Public Sector Union has applied for a protected action ballot order to give Department of Human Services staff the option of striking.

Lawyers for the Australian firm Clayton Utz say this strongly indicates that industrial action is on the way, as public sector pay offers fail to meet its 4 per cent a year wage claim.

First, they say, it is important to understand just what “protected industrial action” actually is.

“Protected industrial action is industrial action that is permitted under the [federal Fair Work Act] act,” legal expert Jennifer Wyborn says.

“There are a number of steps that employees (or, more usually, the relevant union) must follow to be able to take ‘protected’ industrial action.”

These steps include making an application to the Fair Work Commission for a secret ballot order, which must identify what kind of action the employees intend to take.

If it is approved, the proposed action will go to a “yes” “no” for employees, in which more than 50 per cent of all eligible employees must vote “yes” to be able to take industrial action.

Ms Wyborn says the issue of whether employees should be paid while on strike has been a sticky one too.

“Payment of wages to striking employees is an area of considerable confusion. What is clear is that it is an offence for an employer to pay an employee who is taking industrial action that involves the complete cessation of work, even if that action is protected,” she said.

But this prohibition on strike pay does not necessarily apply to partial work bans. In the case of a partial work ban, employers have three options:

  • pay employees in full;
  • stand employees aside completely until they cease industrial action; or
  • issue a partial work notice and reduce employees' pay proportionately to the amount of work they are actually performing.

“Reducing employees' pay for a partial work ban can place a considerable administrative burden on employers, who must calculate the estimated time employees spend on particular tasks and reduce their pay accordingly,” Ms Wyborn says.

“Nevertheless, a partial work notice can be an effective tool for government departments seeking to enforce their rights on industrial action without bringing entire departments to a standstill.”

And finally, legal experts say that the very definition of “industrial action” has been hard to pin down.

Two industrial relations court decisions have gone part of the way:

  • The High Court in recent weeks has held that use of the word “scab”, in breach of a code of conduct, was sufficient grounds for disciplinary action against an employee.
  • The Federal Court held that releasing confidential ambulance response time data directly to the media without the organisation's consent was not industrial action and could be a breach of the employment contract, which might leave the employee liable to pay damages.

“For public servants, a critical issue will be ensuring that whatever industrial action they take complies with the APS values and code of conduct, as failure to comply may be sufficient grounds for disciplinary action,” Wyborn says.

“Industrial action is an ever-evolving feature of industrial relations and a constant source of ambiguity for employers and employees. Getting good advice early to help you manage the process is critical to successful outcomes.”