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Urgent reforms needed to end punitive employer responses to lawful industrial action

15 August 2023

While the federal government is to be applauded for recent reforms to bring greater fairness to workplace laws, a critical issue has been missed that allows employers to exploit a legal loophole and intimidate and threaten employees taking lawful industrial action.

The Fair Work Act requires pay to be withheld from employees for the duration of stop work action; however, the Act also contains another nonsensical provision that gives employers the option of refusing to accept an employee’s performance of work, and withhold a full day’s pay, if an employee undertakes any partial work bans.

The loss of a day’s pay for taking even minor work bans of a few minutes’ duration is manifestly disproportionate and excessive.

It’s essentially a ‘lockout’ threat being used by employers to intimidate staff from taking lawful action.

Queensland Catholic school employers are this week choosing to adopt this shameful tactic. IEU members in over 100 Queensland schools are legally authorised to take action in support of their current bargaining claim. These actions include staff taking an uninterrupted lunch break or simply insisting that their teacher release time is available so they can plan and prepare quality lessons.

In an extraordinary and unprecedented response, four Catholic Diocesan school employers have served legal notice on their staff threatening to dock them a full day’s pay if they participate in any work ban, no matter how minor and no matter the actual time involved.

Notwithstanding this legal loophole available to them, QLD Catholic employers will also have the infamy of rejecting 150 years of Catholic social teaching and Papal encyclicals supporting the right of workers to organise in unions and to withdraw their labour without threat or coercion.

The federal government must urgently amend section 471(4)(c) of the Fair Work Act that allows such a disproportionate response to union members simply seeking to exercise their basic rights.