Human Resources

Information and Guidelines for University Managers and Supervisors

Revised October 2003

This paper is intended to assist University managers and supervisors to meet their responsibilities under the Workplace Relations Act 1996 (the "WR Act") where staff in their areas are involved in industrial action. These responsibilities arise from section 187AA of the WR Act which prohibits an employer from paying an employee for the period during which that employee takes industrial action.

On most occasions the University will receive advance notice of proposed industrial action which has been authorised by the unions concerned following a resolution of union members. In order to constitute "protected" industrial action for the purposes of the WR Act, at least 72 hours written notice needs to be given to the employer of industrial action to be taken in support or in advance of claims made by the unions in the context of enterprise bargaining.

These guidelines are based on the premise that managers and supervisors will exercise their responsibilities and will not engage in industrial action. But, of course, they have the right to do so and the University cannot require them to forego such right (section 170MU of the WR Act). Where a Head of School or Administrative Section or other supervisor takes industrial action then that person's supervisor will need to either ensure that they appoint another staff member to exercise those responsibilities or exercise such responsibilities themselves.¹

What Is Industrial Action?

The definition provided in section 4(1) of the WR Act covers a very broad range of circumstances. The relevant extract from the WR Act is located at the end of this guidelines document.

Essentially there are three broad categories:

• unauthorised absence from the workplace - strike action
• bans and limitations; and
• work to rule

Each of these categories, as they might apply in the University's environment, is expanded on below together with guidelines for dealing with them.

(a) Unauthorised absence from the workplace (strike action)

(includes absence from duty to participate on a picket line or absence which arises from a reluctance to cross a picket line)

In some ways this is the easiest for a supervisor to deal with. Following receipt of advance notice of the strike action an email will be issued by or on behalf of the Vice-Chancellor to all staff concerned (either all staff or all academic or general staff, depending on the notification received by the University). This email will advise staff that their pay will be docked if they participate in the strike action. Staff intending to participate in the strike action will be required to complete a form for this purpose, which is to be countersigned by their Head of School or Administrative Section and returned to Human Resources. Each Head of School or Administrative Section affected needs to:

• ensure that all relevant staff in the work area have received or get a copy of the email issued by or on behalf of the Vice-Chancellor;
• assure staff who want to attend work on the strike days that they have the right to do so and that they cannot be intimidated or threatened if they cross a picket line ², and that any complaints of harassment will be dealt with expeditiously;
• devise a contingency plan to ensure essential work is performed or essential services are provided and that arrangements are in place to cope with any emergencies that might arise;
• identify and record the names of those staff who are on authorised absence or sick leave; and
• forward, through the Dean, or Head of Division, to Human Resources, the following information: the list of names of staff who are on authorised absence or sick leave; and a daily written report on the impact of the industrial action on the operations of the work area.

Human Resources staff will collate and summarise the daily reports. The Vice-Chancellor will rely on this information in reporting to Council or Government on the impact of the industrial action. It is also vital to have accurate information to counter often spurious material appearing in the media.

Some staff who decide to support the industrial action will seek to take annual leave or other leave. Such absence requires the approval or authorisation of the Head of School or Administrative Section prior to commencement of the leave and leave for absences during periods of industrial action should not be approved except where the absence was approved in advance.

Heads of Schools and Administrative Sections are responsible for ensuring that they have adequate staff to properly carry out the work of their area and that the needs of their clients are met. When considering applications for leave it is normal to have regard to these operational requirements. In normal circumstances leave is only approved when the work required can be met by remaining or replacement staff.

Staff taking sick leave on the same days as the strike days will need to provide a medical certificate.

(b) Bans and limitations

Bans and limitations can take many forms. They usually arise from a resolution passed at a meeting of union members where the nature and extent of the bans is agreed. The WR Act requires that details of proposed bans or limitations are notified to the employer in advance of the bans or limitations being imposed. In addition to these "key" bans, the union resolution may give a discretion to union members to take action to frustrate the normal operation of a local work area.

Typically, bans and limitations take a form of refusal to perform certain duties which are part of a staff member's normal duties.

Specific examples are:

• refusing to forward examination results for formal processing;
• refusing to take delivery of a piece of equipment by not signing the necessary docket;
• closing a service area (e.g. a help-desk or an enquires desk) and doing some other work instead;
• rescheduling classes or boycotting scheduled meetings;
• refusing to shelve books;
• restricting normal services to a selected part of the University, for example, refusing to deliver documents to the University administration; and
• in the case of managers or supervisors, refusing to exercise their responsibilities in the face of industrial action.

In summary, bans and limitations comprise any unauthorised actions taken by staff which aim to frustrate the normal working arrangements of the University or which amount to a refusal to carry out their normal daily responsibilities or to follow legitimate instructions.

In response to the "key" bans or limitations, an email will be issued by or on behalf of the Vice-Chancellor which will instruct staff that salary will not be payable unless they must meet all of their normal work commitments. It will advise staff that should they fail to comply with this lawful direction, then they will be deemed to be taking industrial action and their pay will be stopped until there is an indication that they are prepared to perform all their duties.

At the local work area, the Head of School or Administrative Section or other supervisor may be uncertain as to whether or not a staff member is engaging in industrial action because there is some ambiguity arising from the work they are required to undertake. In these circumstances staff should be directed to perform all of their duties and should be clearly informed of the operational priorities that they are required to meet. Staff should be advised that if they fail to comply with this lawful direction then their pay will be stopped until they indicate that they are prepared to do so.

A Head of School or Administrative Section when faced with bans or limitations needs to:

• ensure that all relevant staff in the work area have received or get a copy of the email issued by or on behalf of the Vice-Chancellor;
• assure staff who do not want to support the bans or limitations that they have the right to go about their normal duties without intimidation or threat, and that any complaints of harassment will be dealt with expeditiously;
• devise a contingency plan to ensure essential work is performed or essential services are provided and that arrangements are in place to cope with any emergencies that might arise;
• identify and record the names of those staff who are refusing to carry out the lawful instruction of either the Vice-Chancellor or the Head of School or Administrative Section or other supervisor; and
• forward, through the Dean or Head of Division, to Human Resources, the following information: the list of names of staff who are on authorised absence or sick leave; and a daily written report on the impact of the industrial action on the operations of the work area

(c) Work to rule

This category of industrial action, where staff take a very literal approach to their work responsibilities and refuse to do their usual duties, cannot really be distinguished from bans and should be treated in the same way (i.e. a directive should be issued to carry out duties as normal). A work to rule may include, however, the refusal to work overtime or to attend call-outs. Not many areas of the University actually require staff to perform overtime and those areas that require staff to be on stand-by for call-outs should have alternative arrangements in place in the event that the nominated staff member is unavailable. For the purpose of these guidelines, it is suggested that a Head of School or Administrative Section or other supervisor should take whatever action is appropriate on a case by case basis. Employee Relations Advisors in Human Resources can assist if necessary. Obviously staff refusing to work a normal overtime shift or those on stand-by who fail to respond to a call-out will forfeit their overtime or stand-by allowances for the period.

¹ In the face of bans and a lawful directive to carry out normal duties, argument might arise about whether or not a substitute person can legitimately issue such a directive. Rather than get embroiled in this type of argument, it is recommended that the Dean or Head of Division issue the directive in person where the Head of School or Administrative Section is absent.

² Where a picket is involved, unions should normally issue a protocol which they expect picketers to follow. In general, picketers may briefly stop people wishing to enter the University in order to explain the reason for the picket line or to hand them a leaflet. Picketers should not put permanent barriers across roads, act in an aggressive or threatening manner, or get in the way of moving vehicles.

Commonly Asked Questions and Suggested Answers

Q 1. Are there situations where, during a period of industrial action, it is lawful for staff to refuse to perform their normal duties without their pay being docked?

A. Yes, for example where:

• more than one person is required to safely carry out the work and only one staff member is able to be present;
• the work area has become unsafe because staff responsible for its safety are taking industrial action; or
• the work cannot be done because preparatory work or processing has not been completed.

Q 2. If I cancel or postpone classes because I fear that students may not attend, is that industrial action?

A. Yes, any departure from normal duties related to a period of industrial action is industrial action. Further, you cannot assume that all students may not attend. It is worth noting that full fee-paying students at the University of NSW have previously threatened to sue for breach of contract because classes were deferred or cancelled due to industrial action.

Q 3. If I reschedule a class because it clashes with another student event or because the original class was set for a Public Holiday, is that industrial action if the original date coincides with a prescribed period of industrial action?

A. No, you are responding to the needs of the students and your actions can be demonstrated to be unrelated to industrial action. It would be wise, however, to write a note to your supervisor stating your reasons for rescheduling.

Q4. If I work from home on a strike day, is that industrial action?

A. If you have been authorised by your supervisor to work from home from time to time, and if you have no work commitments on campus on the strike days, then it really depends on whether or not you wish to support the industrial action. If you do not you should confirm to your supervisor that you will be working from home on those days.

Appendix

Definition of Industrial Action under Workplace Relations Act 1996

Section 4 Interpretation

(1) In this Act, unless the contrary intention appears:

industrial action (except in Part XA) means: