On 16 September 2019, Adam Bandt MP, Federal Member for Melbourne, introduced the Fair Work Amendment (Stop Work to Stop Warming) Bill 2019 (the Bill) in the House of Representatives. The Bill seeks to establish "beyond doubt that employees covered by the Fair Work Act 2009 have a right to take industrial action for the purpose of demanding that action be take to address climate change."1
The Bill comes as a climate change "strike" takes place in major cities across Australia on Friday 20 September 2019. As part of the movement, approximately 1200 Australian companies are providing their employees with either a day of paid leave, or a long lunch to enable them to participate in the marches. These companies have rallied in support of their employees taking time off for the marches, under the hashtag "Not Business as Usual".
Both the Bill and the "Not Business as Usual" campaign seek to allow employees the ability to participate in such "strikes" without fear of reprisal by their employers – apparently considered to be one of the key barriers to employee participation. Of course it’s not your typical strike in that it's not walking off the job in protest at something your employer has done or not done. Rather workplace participants are being encouraged by "Not Business as Usual" to attend the events being held all across Australia this Friday and are urging employers to be supportive of this.
The Bill includes the following key changes to the Fair Work Act 2009 (Cth):
- Introduction of a new category of "protected climate change industrial action" which will be incorporated into the term "workplace right".
- Permit an enterprise agreement to contain matters relating to climate change. This is broadly worded and could apply to both direct and indirect matters related to climate change.
- Allow for employees engaged in protected climate change industrial action to be paid by an employer.
- Employees and organisations will be provided immunity from any action under a State or Territory law for engaging in protected climate change action unless the action involves or would likely involve personal injury, wilful or reckless destruction/damage of property or the unlawful taking or use of property.
- Employees or employee organisations covered by an enterprise agreement will be permitted to engage in protected climate change action before the nominal expiry date for an enterprise agreement has been passed.
The Fair Work Act – a force for social change
On its face, it is evident that if the Bill is passed, employers will be obliged to permit employees to engage in paid climate change industrial action, and climate change issues will be allowed to form part of enterprise agreements. However, on a broader view, the Bill demonstrates the ability for collective action on social issues to drive the impetus for legal change, which often lags behind social change.
Accordingly, the Bill, if passed, will represent a shift in thinking away from traditional conceptions of industrial action and may pave the way for other global issues to be encompassed in instruments regulating employer-employee relations.
So what about Friday?
In anticipation of Friday's "strike", employers need to both develop a strategy for responding to employee requests to engage in the strike and make plans for potential employee non-attendance. Such plans, to the extent an employer wishes to support the movement, could include permitting employees to have a paid day or half day of leave, take a prolonged lunch break for the period of the strike or allowing employees to hot desk or work remotely for the day. However, any decisions made in respect of non-attendance need to be compliant with the terms of any employment contract, relevant policy or enterprise agreement.