Airlines: Overseas Carriers

Air New Zealand - Explaining Industrial Action, we need to decide our next steps

With negotiations reaching a critical stage at Air New Zealand many people have asked us to explain how they can take legal industrial action if this is the only way to get a better deal from Air NZ. The law can be complex so here is what we hope is a simple explanation.

Did you know that if you want to take a lunch break when you do not normally take a lunch break this could be construed as constituting illegal industrial action? Or maybe you might think of not doing any overtime or 'working to rule'. If you do this you could be taking illegal industrial action. This is because the law is quite restrictive when it comes to enterprise bargaining and employee rights.

The law in plain language

The Workplace Relations Act is clear in its definition of industrial action in that it is "the performance of work in a manner different from that which it is customarily performed, the result of which is a restriction or limitation on, or delay in the performance of work...'

Therefore, if you just come into work and do your job and no more, and this is different from what you customarily do - then it could be argued that you are taking part in illegal industrial action.

How does industrial action become legal?

It is generally recognised around the globe that employees often have to resort to forms of industrial action in order to increase the bargaining power with their employers. And there are many forms of industrial action that employees take e.g. writing in a red pen when you are required to write in blue ink or the extreme of 'going out on strike'.

In Australia the law changed quite significantly under the coalition government in 1996 with the introduction of the Workplace Relations Act of the same year. Now, should you want to take part in an industrial campaign that involves industrial action there are legal preparations that need to be met before you can even contemplate taking your lunchbreak or writing in red ink.

Firstly you or the Union will need to lodge a Notice of Initiation of a Bargaining Period (IBP). This involves a document being lodged with the Australian Industrial Relations Commission (AIRC) specifying that you intend to negotiate with the company. This bargaining period starts at the end of 7 days after lodging this notice, so you will have to keep working through your lunch for those 7 days.

Then you will then have to show to the AIRC that you have 'genuinely tried to reach agreement' with the company on the matters that you are negotiating. There is no doubt that we can show this at Air NZ.

If you have lodged an IBP and have 'genuinely tried to reach agreement' and feel that you are still not getting anywhere you will then need to lodge another notice with the AIRC indicating that you intend to take industrial action to further your claims. This will need to be lodged specifying the 'nature of the industrial action and the day on which it will begin'. Eg. You will need to advise the commission that on Wednesday the 22nd December 2002 you intend to take your lunchbreak and you will be doing this at 12:00pm. This notice must be lodged at least 3 working days prior to taking the industrial action, i.e. you cannot lodge this on a Friday and take lunch on the Monday for example. You will need to wait for your lunch until Thursday.

Your Employer cannot threaten or harm you

Should you follow all of these formalities and you choose to take industrial action the employer is restricted in how it can treat you as a result. The law says at section 170MU(1):

"170MU(1)

An employer must not:

1. dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; or
2. threaten to dismiss an employee, injure an employee in his or her employment or alter the positions of an employee to the employee's prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action."

Note that not only can they not dismiss, injure or alter your position but they cannot threaten to do this either. If they do so they can be fined and punished by the Courts.

Why we feel this is important to know

At a meeting of members in Sydney yesterday we discussed the law and the need for all ASU members to be protected throughout these EBA negotiations. It was agreed to get your opinion about whether you want the Union to lodge the Initiation of the Bargaining Period (IBP) with the company asap so that if you feel you will need to take industrial action step one has already been met. Remember that you will need to have at least 7 days to lodge this and then another 3 days to notify that you intend to take action.

Also - You need to know that any decision to take industrial action (whether it be writing in red ink or all wearing blue ties for a day) will be a decision that you as union members at Air NZ will make yourselves.

Why the urgency?

We cannot even contemplate industrial action until we have lodged the IBP at the Commission. To do so would be illegal.

These are your negotiations and you decide the way forward.

You need to decide if we lodge this Initiation of Bargaining Period to get the ball rolling.