Industrial action and rallies

Your rights and responsibilities

As an employer it is important you know where you stand regarding employees who may wish to take a leave of absence and attend industrial rallies.

What if an employee calls in sick or has to provide care?

An employee is entitled to take personal/carer’s leave if the employee is not fit for work due to personal illness or injury, or to provide care or support for an immediate family member due to personal illness or injury or an unexpected emergency.

As an employer you have the right to request evidence that would satisfy a reasonable person that the leave is taken for reasons specified above. Unless you have a policy that specifies otherwise, you can request evidence even for a single day’s absence. If an employee is unable to produce evidence, such as a medical certificate, then he or she will not be entitled to payment for the day of absence.

What if an employee asks to take that day as an annual leave day?

Paid annual leave may only be taken for a period agreed between an employee and his or her employer, and must not be unreasonably refused by an employer.  Therefore, granting annual leave will depend on the circumstances of your business and its operations. Also make sure you check the requirements of any annual leave policy your business has in place.  Things that would be taken into account when determining whether refusal is unreasonable would be the amount of notice provided and workloads.

Members are reminded they must keep appropriate records of employee absences. Paying employees who attend the rally without consent from the employer can spark fines of up to $180,000.

What if an employee just doesn’t show up to work?

If an employee does not turn up to work they will not be entitled to payment for that day.  Due to the absence being unauthorised leave, by which they failed to appropriately request leave and receive approval you may choose to issue the employee with a formal warning.

Your responsibility to report

Building participants covered by the 2013 and 2016 Building Codes are required to report industrial action as soon as practicable after the action occurs. Building Code 2016 requires, in some circumstances, action to be reported within 24 hours. Failure to do so could place at risk your ability to tender for or be awarded Commonwealth-funded building work for up to one year.

Other forms of industrial action

The most common form of industrial action is the failure or refusal by employees to attend work.

However, it is only one kind of industrial action. For example, industrial action can include employees imposing work bans (i.e. refusing to perform all of their normal duties). Under the Fair Work Act 2009 (Cth) industrial action is defined as the following kinds of action:

  • Employees performing work in a different manner to how it is customarily performed
  • Employees adopting a practice that restricts, limits or delays the performance of work
  • A ban, limitation or restriction on the performance of work or the accepting of work
  • A failure or refusal by employees to attend for work or the failure or refusal to perform any work at all by employees
  • The lockout of employees for their employment by the employer

Industrial action can only be protected when employees and employers are negotiating on a proposed enterprise agreement, which is not a greenfields agreement or a multi-enterprise agreement. 

 

If you have further questions, please contact our Industrial Relations team on 08 8122 4990 or at IR@mbasa.com.au.


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