The right for workers to start industrial action is enshrined in legislation, but employers can sometimes be left in the dark as to how to respond. What role does HR play in managing a workforce that goes on strike?

Worklogic Director, Jodie Fox speaks with Lachlan Haycock from HRM online about how to respond to industrial action.

Every so often, we hear news of industrial action disrupting the status quo of an industry. Take the upcoming strike from public school teachers in New South Wales this Wednesday for example, who are pushing for improved pay and conditions, or the thousands of Sydney Trains workers who walked off the job in February amid a stoush between the union and the state government.

International law protects the right for workers to strike, join and become active participants in a union, allowing workers to protest unsatisfactory pay, conditions or treatment, and push for positive change. In Australia, that right is protected by the Fair Work Act.

However, the prospect of some or all of your workforce walking off the job might feel daunting, so it’s worth knowing what can be done to mediate conflict during a strike, minimise disruptions to customers and non-striking staff, and prepare for potential future industrial action.

HRM spoke to two experts in workplace conflict and mediation about how HR can respond to industrial action.

1) Prioritise open communication

Employers looking to manage industrial action should start by engaging openly with workers, says Jodie Fox, Director of Worklogic, an HR consultancy that specialises in mediating workplace conflict.

Communication is a vital part of industrial negotiations,” she says. During industrial action, “you need to put the employer’s case to employees out early, so they have a central source of information about what’s happening”.

Open communication doesn’t stop with employees. For employers in service industries, communicating to your customers or consumer base the steps being taken to resolve conflict is a touchstone of good PR in such a crisis.

“The more an employer can take industrial action in their stride, the better their negotiating position when talking to the union,” says Fox.

2) Consider the wellbeing of employees

Employers will understandably prioritise the company’s best interests during industrial action, but HR has a role to play in reminding leaders to also consider workers’ wellbeing.

“In my opinion, speaking badly of your employees because they are taking industrial action is a risky strategy,” says Fox. “They’re still your employees. They aren’t bad people.

“Yes, you’ve had a disagreement about conditions or pay, but it’s important to maintain a good relationship so you don’t have any negativity to clean up after you’ve reached an agreement.”

The wellbeing of managers in particular can be forgotten during times of crisis, as the focus usually rests on mediation between the employer and the union.

“Managers and middle managers are in a stressful position during industrial action as the proverbial meat in the sandwich, and they need looking after,” she says. “They’ll be feeling it quite strongly, and their workload to minimise disruptions will be significant. It’s vital to give as much support and appreciation as you can give.”

3) Know your legal obligations

According to Josh Bornstein, Principal Lawyer at Maurice Blackburn, a (limited) right to strike was only enshrined into legislation in 1993 with the Fair Work Act. In the decades since this occured, the rate of industrial action has dropped.

“Restrictions on the activities of unions, severe restrictions on industrial action and the substantial penalties for contravening those restrictions have seen strike action collapse to record low levels,” he writes in a Monash University paper.

Image: Josh Bornstein/Monash University

The rights and obligations of employers are outlined by the Fair Work Ombudsman. For instance, employers are allowed to lock out their employees from a place of work if they engage in strike action.

Whether an employer must pay employees engaging in industrial action depends on whether the strike action is ‘protected’ or ‘unprotected’ – for which there is a long list of criteria. (You can read more about that at the Fair Work website).

“An employer is prohibited from making payment to an employee for the total duration that the employee is engaged in protected industrial action,” says the Ombudsman.

“Employees (and employee organisations) must not ask for or accept such payment.”

In the case of unprotected industrial action of four hours or less, “the employer must withhold a minimum of four hours payment from the employee”. (Exceptions apply, and employers should seek proper legal advice for their circumstances).

4) Engage in restorative practices

Keeping your employees onside doesn’t only apply to those working in unionised industries; workers across the board need to have their concerns addressed to ensure a functional and healthy workplace.

According to Nina Harding, Director of Nina Harding Mediation Services and Senior Mediator/Facilitator at the Resolution Institute, conflict mediation doesn’t end once formal negotiations are finished. More general “restorative practices” are required.

“Restorative practices can be used to prevent breakdowns in trust and relationships, and when things do go off the rails,” she says.

On a practical level, such practices involve bringing together those involved in conflict, encouraging them to talk openly about their emotions in a safe space, and looking for creative and collaborative ways to rebuild trust.

“It’s not just about talking about the crisis,” says Harding. “It’s engaging your workforce in a conversation that goes two ways and encourages the participation of workers in the organisation.”

“The more an employer can take industrial action in their stride, the better their negotiating position when talking to the union.” – Jodie Fox, Worklogic

For that to occur, HR must stay vigilant to the possibility of conflict emerging – and swiftly stamp it out when it does.

“I worked on a dispute recently where there were 30 complaints made in the period of a few days about a leader in an organisation. Don’t wait for that to happen. If you start to see conflict between different teams or between individuals, move quickly.”

The crux of any conflict boils down to a faultline in trust between employer and employee, says Harding, and the presence of mediators is key throughout this process.

“What employees see when they’re involved in conflict is a breach in trust. They will ask, ‘Why aren’t you fixing this for me?’

“An independent mediator will quickly assess the situation, help people have meaningful conversations and get them back to work. They’re not judgemental. They help identify what’s going on and help people find practical solutions for moving forward.”

5) Plan for the future

Speaking of moving forward – after formal negotiations are finished and action points identified, what’s next?

Once changes have been agreed upon, Fox says to ensure they are implemented effectively across the ensuing 12 to 18 months – so “you don’t have the same fight again and again”.

She and her team at Worklogic approach workplace reviews from a holistic standpoint, coming in at the negotiation stage to canvas all relevant issues for both employers and employees, then clearly laying out recommendations for organisational improvement.

“We look at what needs to change in the organisation, what policies need to change, and what processes need to change,” she says. “Do there need to be changes in terms of structure, for example?”

Later, an audit is conducted to see if those recommendations have been implemented to ensure that “the pain of industrial action translates into positive productivity change”.

For Harding, successfully moving forward from a dispute – not to mention avoiding further unpleasantness for employer and employee alike – hinges on training leaders to understand conflict better.

“HR should upskill leaders in how to lead respectful conversations,” she says. You can do this by seeking support from higher levels of the organisation, or attending training sessions on conflict resolution and mediation.

In the end, it all comes back to where we started – effective communication.

“If we’re able to, without judgement or criticism, listen more to what employees are saying and think creatively about solutions, that is a marvellous way to restore relations within the organisation and avoid large scale conflict.”

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