Section 97 places extensive restrictions on the ability of employers to call in replacement labour to do the work of the strikers. Essentially, employers can not employ or engage people principally to “perform the work of a striking or locked out employee”. However existing employees can voluntarily agree to do this work.
Section 97 has the potential to give a strike real “teeth” because if an employer cannot replace striking staff, then even if large numbers of employees are not on strike, the business may be unable to operate if the strikers are in key roles.
The Court of Appeal has recently issued an important judgment on section 97 which may increase its impact even further. In Finau v Southward Engineering Ltd, a strike in the workplace resulted in a coil slitter machine not being operated. The employer then instructed two non striking employees to operate the coil slitter. The two non striking employees were employed as “tube mill operators” but they occasionally worked on the coil slitter.
The non striking employees didn’t want to undertake the work performed by their striking colleagues and so refused to operate the coil slitter. The employer then suspended them saying they were now parties to the strike.
The issue in the Employment Court was whether the employees could be made to work on the coil slitter as part of their normal duties or whether their agreement was essential. The employees’ union argued that the issue should be decided on the basis that the replacement employees must have been scheduled to do “the particular task that, but for the strike, would have been done by a worker on strike at the time in question”.
The Employment Court found that this approach would “tilt [the] balance very much in favour of employees and unions engaged in a strike”. It held that the non striking worker could be instructed to undertake the work if it was “the type of work” which comes within the normal duties of the non striking employee.
However, the Court of Appeal disagreed with the Employment Court’s conclusion. The Court held that the work of a striking or locked out employee meant “the work a striking or locked out employee would probably have been performing had he or she not been striking or locked out”.
The Court of Appeal felt that both the employer and the non striking employee needed a test that provided clarity to them both and so posed the following question – “the parties faced with a strike, need to imagine what the strike affected part of the workplace would probably have looked like were the strike not taking place… This mental picture is not to be constructed on a snapshot basis or in painstaking details; the mental picture is more broad brush than that”.
The Court stated that what the parties need to focus on is what the striking employee would have been doing over the period of the strike. If the employer wants another employee to undertake that work and if that other employee would not have been asked to do such work but for the strike, then section 97 will apply. That will mean that other employee can lawfully refuse to do that work.
Contingency plans may need to be re-examined in light of this decision, as it may no longer be safe to assume you have the resources to cover striking staff.