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Taking protected industrial action

Taking protected industrial action

Paul Gilbert, ANMF (Vic Branch) Assistant Secretary

It is becoming increasingly common for nurses and midwives to need to take industrial action to secure a decent outcome in enterprise bargaining. In the public sector, this has been less common of late, but was always a necessary step prior to 2020, and maybe so again in 2024.

Industrial action during bargaining that meets the requirements of the Fair Work Act is called protected industrial action. When members take part in protected industrial action, an employer must not threaten to dismiss or discriminate against them. Civil action can’t be taken against members or the union for participating in protected industrial action.

What are the Fair Work Act requirements?

There are many requirements, and restrictions, but in short the following steps are required:

The ANMF must make an application to the Fair Work Commission. Because the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 covers 104 separate employers, we need to make 104 separate protected industrial action ballot applications.

If the Fair Work Commission is satisfied that ANMF has, and is, genuinely trying to reach agreement on a new EBA, the Commission can issue an Order that a Ballot be conducted to authorise the taking of protected industrial action. While the Australian Electoral Commission has historically conducted these ballots, there are now a number of approved ballot agents we can choose from. This also means that the ballot can be electronic, rather than by post, which has been problematic in the past.

ANMF has to supply the Commission with our proposed ballot questions, each of which has to be describing some form of proposed industrial action. Industrial action is essentially performing your work differently than you normally would, and/or involve work stoppages or the like. Wearing an ANMF campaign t-shirt, of itself, may not be industrial action. But wearing a campaign t-shirt at work to encourage discussions between members and families is industrial action – so some of the questions may seem odd at first glance, but that is necessary to ensure your actions are protected.

The Fair Work Commission determines whether the Ballots should be authorised, and the timetable for the ballots.

Who gets to vote in the ballot?

The ANMF provides a list of members that we understand work at the 104 employers. Each employer provides a list of their employees who would be covered by the new EBA. The Ballot Agent has to maintain confidentiality about who is on those lists, but only those that appear on both lists will get to vote.

This can be tricky if, for example, your ANMF membership is under your married name, and your employer records are under your pre-married name. The Ballot agent then needs to check for common mobile phone numbers, birth dates and the like to piece the puzzle together. That is a reason why we have been so strongly encouraging members to ensure your ANMF details are up to date.

Prior to the ballot commencing, you (should) receive a notification from the Ballot Agent (via SMS or email or both) that the ballot will shortly commence, and be provided with your individual access code for the electronic ballot. Closer to the time, ANMF will provide members with contact details for the Ballot Agenet in the event you do not receive your notification.

I work at two employers; can I vote twice?

Yes, it is reasonably common that members work at more than one of the 104 employers, in which case you are eligible to vote more than once.

Do I have to vote?

No, but for the reasons that follow we encourage all members to vote.

How many members need to vote for the action to be protected?

Of those who are on both the ANMF’s and the employer’s lists, more than 50% must return a valid vote. At this point it doesn’t matter if you vote yes or no, just that you vote.

Of those who do vote, more than 50% must vote in favour for the action to be protected.

Both tests must be met at each of the 104 employers.

What happens if my workplace doesn’t get enough votes?

Then protected industrial action cannot take place at that workplace. It can take place at any of the 104 that do meet the thresholds, but not at those that do not. It is determined on an employer-by-employer basis, not a campus-by-campus basis. If for example more than 50% of Grampians Health members vote, and of those more than 50% vote in favour, then the industrial action is protected at all Grampians Health workplaces.

Should I vote yes even if I think I will take only some forms of the protected action listed?

Yes! Voting for protected industrial action does not mean that we will necessary be taking any, or all, of that action. It is simply a process for making it protected legally, in the event that we do take action in the future.

What happens once the ballot outcome is declared?

Before any industrial action can commence, the EBA must be past its expiry date – 30 April 2024. Once that date has passed, the ANMF must give written notice to your employer of the action that may be taken. The amount of notice required will be a minimum of 120 hours but may be longer if the Commission decides it should be.

The Ballot will contain a large range of industrial action ‘options’. It doesn’t mean that we will take all those actions, or indeed any of them. It simply gives members the right to do so should it be deemed by members as necessary.

However, if any of these ‘options’ have not commenced within 30 days, then we cannot commence them later.

When will members decide?

ANMF will call a statewide members meeting once we know the ballot outcome. If we haven’t reached agreement on a new EBA by that time, members at the statewide meeting will determine the next steps, which of course may include giving notice to each relevant employer of protected industrial action commencing.