Industrial action – Fact Sheet Two
STRIKES and LOCKOUTS Some Questions and Answers What is a strike? The Employment Relations Act provides a wide-ranging definition of strike action, which includes: • discontinuing employment, either wholly or partially, in reducing normal work-performance; • refusing, after discontinuing work, to resume or return to duties • breaking the terms of an employment agreement • refusing or failing to accept work in which employees are normally employed • reducing normal output or rate of work A strike does not include meetings authorised: • by the employer • under the provisions of an employment agreements • under the provisions of the Employment Relations Act When is it legal to strike? The right to strike is restricted to: • any time when justified on health and safety grounds • when the strike is lawful (see immediately below) and relates to the negotiation of a new collective agreement. A strike is unlawful when it: • occurs when a collective agreement is in force • occurs during bargaining for a proposed collective agreement unless at least 40 days have passed since the initiation of bargaining an existing collective agreement had expired at the time bargaining was initiated In the case of multi-employer bargaining, at least one of the pre-existing collective agreements have expired and 40 days have passed since bargaining was initiated • relates to the negotiation of a proposed bargaining fee arrangement Can striking workers be replaced? Employers are not permitted replace striking workers unless the replacement employee: • is already employed at the time he strike occurs • is not employed principally to perform the work of a striking worker • agrees to perform the work However, an employer may employ another person to do the work if: • there are reasonable grounds for believing that the work must be performed for health and safety grounds • the person is only employed to perform work only to the extent necessary for health and safety grounds
Can staff face disciplinary or legal action for going on strike? If the strike is lawful, staff are entitled to strike and cannot face disciplinary or legal action as a consequence Does notice of strike action have to be given to the employer? No, notice of intention to strike is only required in a number of defined “essential” services. Universities are not defined as essential services. Suspension of striking workers An employer may suspend striking employees for the duration of a strike An employee is not entitled to their normal remuneration while they are suspended Where there is a strike and, as a result of the strike, the employer is unable to provide for a non-striking worker work that is normally performed by that employee, the employer may suspend the employee until the strike is ended. What is a lockout? A lockout is an action where an employer: • closes their business, suspending workers; or • breaks the terms of employment agreement; or • refuses or fails to engage worker for their usual work And is done with the view of compelling employees to • accept terms of employment; or • comply with demands made by the employer Employees who are locked out are not entitled to any remuneration in respect of the period for which they are locked-out Can staff face disciplinary action for being suspended or locked-out? Staff cannot face disciplinary or legal action as a consequence of a lawful lock-out or suspension. Similarly, it is not acceptable for strike action, lock-outs or suspensions to negatively impact on promotion or performance reviews, or to be recorded on personal files relating to conduct, performance or disciplinary processes.
By taking industrial action, the union aims to put maximum pressure on the Vice-Chancellor to achieve its bargaining goals. The full support and participation of union members is vital in ensuring a successful outcome