Episode 5: Protected industrial action

Transcript

Transcribed by Lake Majstorovic
All information cited was accurate as of the time of recording (October 2021).

[Lively electric guitar theme music plays.]

Linda Jenkin: Those things really grind management’s gears.

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Female voice-over: Welcome to the VAHPA Voice, the podcast for all Victorian Allied Health Professionals from physiotherapists to radiographers, occupational therapists to social workers. This is the podcast for you and all Allied Health disciplines.

Allied Health Professionals can no longer remain the forgotten workforce.

[Theme music fades out.]

Rjurik Davidson: Welcome to the VAHPA Voice. This episode, we’re going to be looking at protected industrial action. This is Rjurik Davidson, the Research and Communications Officer of VAHPA, and with me, I’ve got two VAHPA staff members. Would you like to introduce yourselves?

Linda: Sure, my name is Linda Jenkin. I’m one of the Lead Organizers at VAHPA in the Disability, Diagnostic and Primary Care team, and I’ve been at VAHPA since 2012.

Tom Fooks: Hi, my name is Tom Fooks, and I’m an Industrial Officer with VAHPA. And I’ve been, ah, with VAHPA for almost two years.

Rjurik: Thanks, guys. So protected industrial action. We’ll start maybe with you, Linda, when and why might AHPs consider taking protected industrial action?

Linda: So um, the when is… I guess there’s two answers to that. One is the technical reason which, you know, I think Tom can probably, you know, take us through a bit more.

But in terms of the when on the ground, it’s basically when you’re bargaining and things are either not progressing or they’ve sort of got to a bit of a stalemate, and the offer is not– not deemed appropriate by members. So either the pay rates are too low, or the conditional improvements that we’re looking for are not there, they’ve said no to more than we’re keen about, or combination of the two.

It’s something that can only occur in bargaining. So nothing else that’s happening in the workplace can you actually take industrial action, which… seems sort of crazy that, you know, we can’t actually take action or withdraw our labour unless we’re in bargaining, but that’s the industrial relations system.

And look, we don’t– we do a lot of bargaining, and we don’t often end up taking industrial or protected industrial action. But sometimes, it’s the thing in your toolkit that you, you know, you have to use.

Rjurik: So Tom, maybe you could explain to us a little bit about what makes it “protected”, like what’s– what’s protected versus unprotected industrial action?

Tom: Sure, thanks, Rjurik. That’s a– a really good point. Because sometimes those of us who work in the union movement or have done for a long time, we use these terms and think that it’s straightforward, but it’s actually quite a complex system.

I think most people would have an idea what industrial action means. Most people think, oh, that’s when you go on strike. Yes, that is one form of what industrial action might be, but it’s very carefully regulated through our legal system, and that’s mostly through the Fair Work Act.

So when you’re saying what does it mean to be protected industrial action, that’s only when you’ve gone through a whole– whole process of steps. Because if you’re a worker, and you take industrial action that’s not protected, there can be really serious consequences for you. You might get disciplined, you could even lose your job, that sort of thing, depending on how seriously it’s taken.

So for it to be protected, as Linda was sort of saying, this only happens during a period where you’re bargaining for a new Enterprise Agreement. And if you’re not getting what you want through negotiations at the table, what can happen is a union can apply for what’s called a Protected Action Ballot Order, and that’s done through the Fair Work Commission.

So it’s only after that process has been completed that union members can then organize and engage in taking what’s called protected industrial action. We’ll go through some of those steps a little bit, we don’t want to bore you with the fine details. Um, but what it means is that only after that process, if you notify the employer that you’re taking that action, it then becomes protected industrial action, so you can’t have any adverse action taken against you,

because you have a legal right to engage in that protected industrial action.

Rjurik: So this is basically when things aren’t going well in the Enterprise Agreement, um, bargaining this is a way of saying hey, we’re not happy, and exerting a little bit of pressure, which would have once been in, you know, a kind of traditional strength of the– of the workers. That is, to withdraw your labor and say we want to do something different.

Linda: Yep. Yeah. So, um, and it can be a case of, you know, actually, you know, people being very clear that they do want to take that action, it certainly can be very much sending a shot across the bow of your employer to just say, look, we’re not just going to talk and talk and talk, because most employers would have you bargain, you know, for as long as they can.

Because all the time that that’s happening, that money is not being paid in pay rates and pay rises, you know, people leave, you know. They also know that back pay becomes more of a bit of a stick or a carrot, depending on your view. Because the longer out from… the longer that bargaining period goes, the more potentially the backpay becomes, and people start to look at that.

So– so as Tom said, yeah, we make an application to Fair Work, we, you know, sit down with members and say, well, what sort of actions do you think would be effective. And by effective, for us at VAHPA always means actions that are going to impact the business, but not impact patients and their families, because that’s not who our members are, you know, they take their jobs, and, you know, the professional in Allied Health Professional very seriously.

We then go to the Commission and ask for that ballot on– on those actions, and whether people you know, support taking them.

Rjurik: So, we’ve talked a little bit about the process. Tom, did you want to sort of explain once, so… once the application is lodged, um, to Fair Work, what– what are the considerations there, and what sort of happens after that?

Tom: Yeah, so… I think as Linda was sort of outlining, as part of the application, there’s a whole– there’s some technical matters that you have to go through. And then what you have to provide is a list of all the forms of different protected industrial action that you may wish to take.

And then there’s got to be, as we said, it’s called a Protected Action Ballot Order, so there’s got to be a ballot of union members. Now, in order to be successful, you have to make an application in the correct form and fill out all the bits, make sure you cross all your I’s, dot all your T’s.

But effectively, the Fair Work Commission will make a Protected Action Ballot Order where… it has to be satisfied that that the union is genuinely, genuinely trying to reach an agreement. So, you have to basically show that you have actually been bargaining, you are trying to get an Enterprise Agreement through those negotiations. It’s fairly limited, it’s not too hard to reach that test, there’s no strict rule of you have to have a certain number of meetings,

you’re not obliged to make any concessions as to what your claims are. But effectively, you’ve just got to show that you’ve genuinely been trying to reach agreement.

Once that happens, you’ve got to provide that list of all the– all the questions, basically all the forms of action that you want to ask union members if they approve. The employer then does have a right to object to that. It’s not… they can’t object because they don’t want you to take those forms of action, obviously you wouldn’t have the process at all if that were the case, it’s more, again, some sort of technical legal things, certain kinds of action aren’t allowed to

be taken.

And that can be things like… it might be, particularly for us in the healthcare sector, if we’re going to take a form of action that could have a serious risk to the health and safety of the population or a part of it, then you might not be able to take that form of form of action. And there are also other bits and pieces in there, like a– there’s got to be a notice period. So it must say, if you want to take industrial action, you’ve got to give the employer, normally it’s at

least three full days’ notice. For some actions, if they’re sometimes– if they’re more serious, or they will require a greater amount of responsive action from the employer, you might have to give five days’ notice or something like that.

Linda: We had an example of that with one of our bargainings a few years ago, actually an example of two of the things you cited there, Tom. One was the employer objected because they said that this was going to inconvenience their business. And the Commissioner very, very quietly and gently said, “I think that’s the point”. And you know, just because they don’t like it, that objection is not valid.

In the same industrial action, or protected industrial action, that organization was able to get a longer period of notice for a couple of their sites that were regional because their argument was if our staff, or our members rather, their staff, were going to withdraw or limit their labor, then they would actually need to fly staff in and so they would need more notice to do that. So, they can make those sorts of adjustments.

And in some of our other bargaining as well, we would have in the past agreed to particular areas being, um, excluded from that action, so that might be the emergency department staff or the ICU staff. So it is subject to that negotiation, but most of our protected action applications have not been opposed by the employers. You know, we’ve probably had, you know, maybe four? Most of them, they sort of know that their objections– they’re going to be annoyed

and inconvenienced, but that’s not really the point. Um, so yeah.

Rjurik: Four out of how many?

Linda: Oh, we would have had dozens over the– over the new decade of the branch. So, heaps. You know, check the list down there. Heaps.

Rjurik: Alright, so it’s a small–

Linda: Yeah, very small. Yeah.

Rjurik: Okay, so the– the application is successful. So then what? So, how does the ballot work? And my understanding is that it gets referred to the Australian Electoral Commission?

Linda: Yeah, so it gets referred there. And the really important thing about that is that it’s a completely arm’s length process from both the union and the company.

So on a particular date that’s determined by the AEC or the Electoral Commission, both us and the employer have to supply our rolls. So our roll is our roll of members at that organization. And theirs is their list of Allied Health Professionals who work under that Agreement.

And then what the Commission does is it matches, and it says right, person A is on the employers list, but they’re not on the VAHPA list, and so that person doesn’t get sent a ballot paper. Person number two is on both the employer list and the VAHPA list, and so that matches, and they get sent a ballot.

So they get sent, just as you would for any other like a council or any other sort of paper ballot, they get sent a ballot paper with all the actions and a space to vote yes or no, an envelope to return that in which is sealed, and then an outer envelope for postage, so that when that gets returned to the Commission– to the Electoral Commission, that outer envelope is removed. And what you have is then, I guess, box of unidentifiable ballots.

So when you return your ballot, nobody knows, you know, they tick off that you did, you know, you were eligible to vote. But then when the votes are counted, nobody knows who voted yes or who voted no.

Rjurik: And once the votes are counted, what’s the consequence of a yes or a no?

Linda: Ahh, well, even before they voted– before they counted, rather, there’s a couple of hoops that we have to jump through. So the industrial relations system is very much set up where workers and unions have to jump through more hoops than employers.

So the first thing is– is that in order for the ballot to be successful, the first hurdle it has to jump is that 50% plus one of eligible staff or eligible members have to participate in the boat– vote. So to use, you know, simple numbers, if we’ve got 100 members at this workplace, that 51, a minimum of 51 of them, have to return their ballot papers, or that’s it, the rest of it doesn’t count. So it’s simple majority.

At VAHPA, we always– what we call the VAHPA majority is 70 to 80% voting because we– we don’t just want to limp over the line, we want to get a really strong message. So most of our ballots will end up around the 75% mark.

So that’s the first hurdle. The first hurdle is the harder one to reach, because people lose their ballots, forget about them, drop them down the side of the couch.

The second one is that of those people who vote, 50% plus one of them have to vote yes for the actions. Now, in that ballot, we usually find that, you know, we’re up in the– the high 90s. Because, um, you know, by that stage, people have– members have engaged, they know why we’re having to take this particular step. And even if they’re not planning on taking the actions themselves, they support, you know, the reason why those actions are on the list.

And so at the end of that, sorry, the Commission, the Electoral Commission would declare a statistical result, which is how many people are eligible to vote? What percentage participated? And what percentage voted yes or no?

Rjurik: So what sort of actions are people likely to be voting on? What sort of actions are we talking about?

Tom: Yeah, so, they can be almost– almost anything. Not anything, but you’ve got to be creative about some of these things. Obviously, you want to take a form of action that is going to have an impact on the workplace. But obviously, we don’t want to do anything that’s going to damage the– the clients or the patients that members will be treating. We don’t want to hurt them in any way.

Sometimes it’s about being creative about maybe making life a little bit difficult for the business. And that will usually be quite progressive through a sort of a scale. So one of the most basic things we often do is that will say members will refuse to abide by a uniform policy and instead they will wear a VAHPA t-shirt.

Now, that might be a little bit difficult these days, depending on particularly in the midst of a pandemic on the very strict rules about what you can and can’t wear with your PPE, and whatnot. But if you’re in a kind of role that’s not necessarily strictly, directly client-facing with people who may be ill, or subject to potentially, um, you know, getting an infectious disease, then that’s the kind of thing that sends a message.

So when clients come into the service, and they see all their staff wearing these union t-shirts, they’re gonna know what’s going on here. It also makes management feel a bit uncomfortable to– so they– that it’s going to be obvious that people know there’s some sort of union action going on here.

From that, it could then be more, you know, traditional sort of workplace-related things like, we will only work our strict hours. So if you work a, you know, a shift, where you start at 8am, and finish at 5pm with your lunch break, then you rock up at eight on the dot, and you leave at five on the dot, and refuse to work any overtime, make sure you take all your lunch breaks, which you’re entitled to, and don’t work through them if you’re requested to.

Things like that, right up to, obviously, there can be forms of work stoppages, strike in long term, but usually, it would often only be for a short period. We might just do sort of something around a lunchtime, you know, so we might take an hour off, where we refuse to provide our services.

So all those things can be done individually or in conjunction with each other, you only need potentially only one person might want to do it, where that can have an effect. That sometimes might– might take place with invoicing-type things, so refusing to fill in certain paperwork details so that the patient doesn’t get invoiced. And then either they might just get their treatment for free, potentially, or otherwise, management have to go and do that work. They’ve

got to go– it takes them a lot of time to find out what person had what procedure, when was that, and they’ve got to go in and fill in all these systems, so it can create a bit of difficulty there.

So those are some, sort of, examples of the types of actions that Allied Health Professionals might take.

Linda: Two are the other sorts that, one’s been happening for a while, the other one is sort of more since we all went into Zoom land.

So often will have people put a campaign-related message on their email, so change their footer. Fun and silly things, because you can have a bit of fun with industrial action, like changing the size of your font, so that you know you’re replying to emails, but they’re in 72-point font, so the person who gets them, the manager who gets them has got to change that.

One of the more recent ones which we’ve done is that we’ve had people change their background when they’re in a Zoom meeting or a Teams meeting to a VAHPA background so that it clearly says, you know, look, we are, you know, we are taking action.

A bit like the T shirts and flyers and things, it’s not so much the action itself, it’s the act of collective defiance, and saying, you know, enough is enough. But they’ve been pretty popular.

And they do, ah, occasionally people will say to us, I mean, look, really, I mean, what difference is wearing a t-shirt going to make. But those things really grind management’s gears. And so– which is fair enough, seeing that’s where they’ve got our members, too.

We had a lovely one a few years ago, where members had taken action. It had been quite a long negotiation. And as part of that they were wearing VAHPA t-shirts, and some of the patients were saying to them, oh, darl, I love your new uniforms. And they were like, “whoops”.

But management were just apoplectic because it’s like, oh, my goodness. First of all, they think the union t-shirt looks better than our uniform, and the numbers of people, you know, of staff wearing them as well. And we’ve had that as well, where a manager’s gone through a workplace and seen the people wearing the t-shirts, and said, oh, I didn’t think they had nearly this many members here.

So as Tom said before, like, it could be one person doing the action, it could be 10 people. When we vote, when people vote on those actions, participation in them is always your choice, it’s always voluntary, and not all the actions may end up being taken.

But even if they are, you’ve still got ultimately your choice to participate in it. And there might be some people who say, look, actually, I can’t do that because of XY and Z. And we’ll always respect that, like, you know, there’s not a one-size-fits-all when it comes to industrial action, and different people will help out collectively on different things. So it all sort of goes together like a bit of a– bit of a jigsaw.

Rjurik: Yeah. How long– how long might some of these actions go on for? If it was, like, replacing a uniform with VAHPA t-shirts, which I have to admit look pretty good.

Linda: [Laughs] It depends a bit. So, some of those ones that are promotional will usually start and… I think Tom said before, they tend to be– you sort of tend to grade them up as– as things progress.

So some of those promotional ones will start at the beginning, and usually continue until the issue is resolved, whereas other ones might be a bit more sporadic. So you might have a stoppage, or you might have, you know, we’ve– we’ve had an organization where the members banned overtime in a particular area on a Saturday because they knew that these patients weren’t going to be terribly put out. But they also knew it was– that particular area was a big

money spinner for the organization on a weekend, and so they could, you know, impact them there.

And that would just be a sort of random, you know, one week, maybe two weeks later. It really just depends. Clearly, you can get back to the table at any time, and that’s always the aim. But every bargaining is a little bit different.

Rjurik: Can I just ask how do VAHPA members go about deciding what are the appropriate actions? Like, how does that list get put together?

Linda: We’ll often put a bit of a sample list together, I’ll usually talk about that with Tom or other industrial staff. And then we put it out there, we’ve got a list out at the moment, and other suggestions will come back.

Rjurik: Mm, yeah.

Tom: Yeah, I think that, look. There are some of the forms of action that we’ve just talked about that could be really effective and would apply at just about any site. So we’d usually include those, at least in a draft, but it’s always up to members to endorse that and to make sure they– they’re comfortable with any actions that might go on a ballot, and then they might have the opportunity, opportunity to partake.

And then what we’ll do, obviously, we’ll speak to the members and the delegates, because there might be particular things that you know, Linda and I aren’t out there every day, we don’t know the details.

So some of those little things about what form of paperwork will we put a ban on, and there might be this specific sort of template document that would really make a bit of a mess of things for management if we refuse to complete that. Or there might be a, you know, certain device or piece of software, so we refuse to use X Y Z software to complete this. And that will obviously depend on each individual workplace.

So, it’s really a combination of some standard things, and then some specialized things and making sure there’s a lot of buy-in from members, because what we know is, if they’re involved in it, they’re engaged– you know, they’re engaged in it, they’re going to make sure they do actually vote, because you’ve got to hit those numbers. Um, and then they go and take the action when we want to do it.

Because what we know as well, I think Linda talked about, you’ve got to have at least 50% of your members vote in the in the ballot, and then for each individual action, you know, at least 50%, a majority of people vote yes to each action. But in reality, sometimes that’s not even enough.

That’s enough on a technical level to pass the legal hurdles. But if you’re a manager, and you’re trying to run some two-bit Enterprise Agreement through that has nothing in the way of any improvement, and union members that work for you say, “no, this isn’t good enough, and if you don’t fix it, we’re going to take industrial action, we’re going to apply to Fair Work Commission”.

They’ll sort of…  they’ll have a look at the numbers. So you’ve got to realize that as well, the employers will see the numbers. They don’t know the names of the individuals at the time, but they see how many people vote, and how many voted yes, and what percentages.

So as Linda’s saying, if you’ve got 100 members at a worksite 51 of them vote in the ballot? Yes, technically, you pass that test. If you’re a manager, and you say only 51 voted, you’re actually thinking 49 of union members couldn’t even be bothered filling in a– an anonymous form and sending it back, you know, via Australia Post.

So that’s why, as Linda was saying, we want to get around, you know, 75-80% at least of people returning the ballot, and then usually 95% plus voting yes. That sends such a strong message to your employer.

So if you’re in that situation where you’re thinking about it, but you’re not too certain, and you’re a bit– a bit hesitant. It is– it’s a difficult thing to do, especially if you’ve never taken industrial action before. But if you know your manager is gonna get a form of a– a declaration back from the Australian Electoral Commission, and it says, whoa, 85 of out of my 100 union member employees all voted in this, and, you know, 97% of them voted yes. They’re

thinking “they’re serious, they mean business, we’d better come back to the table and do something better”.

That’s– that’s the idea. And it’s only through those big numbers, and then potentially lots of people taking the action, that it really starts to put the pressure on management to make sure they treat us with a, you know, a bit more seriously and maybe come to the table and offer some better– some better provisions.

Linda: Because the other thing is, we’ll always say to– you know, we’re obviously bargaining with lots of different groups of members. And we’ll be completely honest with them where we don’t have the membership density, we’ll say, “well, at the moment, you couldn’t do this because you would be demonstrating to management that your density is quite low”.

I guess the other side of that coin though, is– is that that’s their measure of density when you actually deploy the application. And when the ballot goes through, people can still undo, join between the ballot, so people who might not have been members at the time of the ballot, but are still there and join in the meantime can actually then take the actions.

So if you’re a smart manager, you’re also looking at those numbers and saying, “well, that might be 85 of my 100 on this paper”, but you know that there are more people who are in support of it. And then once those actions start happening, often people will get involved there.

But I guess the key thing for us is to say, look, we know that this is not something that our members take lightly. And it’s not something that we suggest, you know, just as a random “ooh, we haven’t had any industrial action this week, let’s do some”. It’s a lot of work, and it’s a lot of– a lot of work on the ground for our delegates and our members, and a bit of stress as well.

It’s not something we’d do every day. But, you know, if you’re not being shown that respect in bargaining, and you’re not getting where you need to get, then really, it is the tool that the industrial relations system provides for us.

And, and we think particularly after the 18 months, coming up to two years that Allied Health Professionals have had, you know, in 2020, and 2021, that it’s really incumbent on bosses to get their act together and get their bargaining done, or this is what they’re going to face.

Because enough is enough, you know, people keep putting in, the system’s been running, and by this, I mean in all sectors, on goodwill for a very long time, the goodwill of our members, and… They’re a bit jack of it, you know, when that’s… that’s when we get to people saying “well, right, when can we take action? How do we do that?”

So yeah, not something done lightly. But sometimes the fulcrum, I guess, that you need to give things a bit of a shove.

Rjurik: Thanks for your time, both of you. Is there anything you wanted to add just before we sign off today?

Tom: I think, you know, just as we were saying, it’s… it’s not something that happens very often, it’s quite a difficult process to go through, there are a lot of steps.

But in my experience, working through the union movement for quite some years now, I’ve seen a lot of members who have been scared and little bit– bit hesitant about the process, but once they go through it, and they do take that action, I’ve never seen a group of people who seem more naturally intrinsically rewarded. It’s a really powerful process to be a part of.

You have a right to be treated well at work. And that sometimes means you’ve got to take some drastic action, like taking protected industrial action. And when you do that, when you stand up for yourself, but not just for yourself, for all of your colleagues as well, you can make a real difference.

And that’s something people should be proud of doing, and, um, they should be really encouraged to get involved in that process, if that’s what’s required to make sure they’re treated fairly and reasonably at work.

Rjurik: Thanks again for your time.

Linda: Thank you.

Tom: Thanks!

Linda: See ya.

[Lively guitar outro music plays.]