WORKPLACE RELATIONS ACT 1996 - SECT 872 Additional effect of Act--industrial action

This legislation has been repealed.

WORKPLACE RELATIONS ACT 1996 - SECT 872

                   Without affecting its operation apart from this section, Part 9 also has the effect it would have if:

                     (a)  each reference in that Part to an employer (within the meaning of that Part) were read as a reference to an employer (within the meaning of this Division) in Victoria; and

                     (b)  each reference in that Part to an employee (within the meaning of that Part) were read as a reference to an employee (within the meaning of this Division) in Victoria; and

                     (c)  each reference in that Part to employment (within the meaning of that Part) were read as a reference to the employment of an employee (within the meaning of this Division) in Victoria by an employer (within the meaning of this Division) in Victoria; and

                     (d)  Division 8 of that Part had not been enacted; and

                     (e)  subsections 420(1) to (4) were replaced by the following subsections:

             (1)  For the purposes of this Act (other than Part 16 ) , industrial action means any action of the following kind:

                     (a)  the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

                     (b)  a ban, limitation or restriction on the performance of work by an employee or on acceptance of or offering for work by an employee;

                     (c)  a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

                     (d)  the lockout of employees from their employment by the employer of the employees;

but does not include the following:

                     (e)  action that is not agreement‑related (as defined by subsection (3));

                      (f)  action by employees that is authorised or agreed to by the employer of the employees;

                     (g)  action by an employer that is authorised or agreed to by or on behalf of employees of the employer;

                     (h)  action by an employee if:

                              (i)  the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

                             (ii)  the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Note 1:       See also subsection (5), which deals with the burden of proof of the exception in paragraph (e) of this definition.

Note 2:       See also subsection (6), which deals with the burden of proof of the exception in subparagraph (h)(i) of this definition.

             (2)  For the purposes of this Act (other than Part 16 ) :

                     (a)  conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that employees are required to perform in the course of their employment; and

                     (b)  a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.

Meaning of agreement‑related

             (3)  For the purposes of this section, action is agreement‑related if:

                     (a)  it relates to the negotiation or proposed negotiation of an agreement under Part 8 (as that Part has effect because of section 869); or

                     (b)  it affects or relates to work that is regulated by an agreement under Part 8 (as that Part has effect because of section 869).

Meaning of lockout

             (4)  For the purposes of this section, an employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts (except to the extent that this would be an expansion of the ordinary meaning of that expression).

Burden of proof

             (5)  Whenever a person seeks to rely on paragraph (e) of the definition of industrial action in subsection (1), that person has the burden of proving that paragraph (e) applies.

             (6)  Whenever a person seeks to rely on subparagraph (h)(i) of the definition of industrial action in subsection (1), that person has the burden of proving that subparagraph (h)(i) applies.