188.8.131.52 Situations Involving Industrial Action
Impact on qualification for NSA
A person is NOT qualified for NSA during industrial action if they:
- become unemployed due to taking part, or having taken part in industrial action or in a series of industrial actions, or
- become unemployed due to other people taking part or having taken part in industrial action, and
- the people or some of the people involved in the industrial action were trade union members, and
- the person was a member of the trade union during the period of the industrial action.
If there is a dispute between the claimant and the employer about whether or not the unemployment was caused by an industrial dispute, the delegate may need to consider contacting the union involved to clarify the situation.
Connection to industrial action
If a person is a member of a union involved in industrial action, but their connection to that action is distant, the connection between their unemployment and the industrial action may be broken. If it is decided that the connection is broken, then the person can be treated as unemployed (1.1.U.30). Determining whether the person's connection to the industrial action is broken or not depends on the circumstances of each case.
Example: During a period of industrial action at his workplace, a person who was a member of the union involved obtained employment elsewhere. The person was subsequently put off from this new job. The person is deemed to be unemployed, because their connection with the original industrial action had been broken.
Industrial action exclusion after industrial action ends
If a person applies for NSA or YA as a job seeker as a result of unemployment arising from industrial action and that industrial action has ceased, they may be disqualified from NSA or YA (job seeker) for 6 weeks after the industrial action ends. This disqualification applies only if the industrial action was in breach of an order, direction, or injunction issued by a State industrial authority, the Australian Industrial Relations Commission (AIRC) or the Federal Court. This exclusion period commences from the date the industrial action ceases. If the person found other employment and then became unemployed again within this 6 week period, any remaining part of the exclusion period would still apply. Claimants for PP are not excluded after the industrial action ends.
Cessation of industrial action
If a person became unemployed as a result of industrial action, and the industrial action was not in breach of an order, they may qualify for NSA once that industrial action ceases. If the employees cannot resume work because they are locked-out by their employer, and the employees are willing to perform work for the employer in the normal manner, then the employees can be considered to be constructively suspended from work. In circumstances such as this, subject to eligibility criteria, NSA is payable.
Industrial action can be considered to have ended when normal work has resumed and no bans or limitations on work are imposed. If after resumption of work some workers remain stood down because they cannot be gainfully employed, NSA, YA (job seeker) or PP may be payable. NSA or YA (job seeker) would only be payable if an industrial action exclusion did not apply, or had expired.
Resignation from trade union
A member of a trade union remains a member until their resignation is formally accepted. Three months notice is required under the Workplace Relations Act 1996.
Impact on partner
While a recipient may not qualify for NSA, YA (job seeker) or PP while engaged in industrial action, their partner may qualify for an income support payment in their own right. If the payment is granted, the maximum rate payable is the partnered rate. If it is paid in the context of industrial action, the payment must be kept under close review during the course of the dispute. Any strike pay received by the worker is treated as income and may affect the partner's rate.
Act reference: SSAct section 596 Unemployment due to industrial action, section 553A Unemployment due to industrial action, section 500C Qualification affecting member of a couple-unemployment due to industrial action