Australia high court ruling imposes greater restrictions on industrial action


Australia high court ruling imposes greater restrictions on industrial action

Terry Cook

16 December 2017

A majority ruling by Australia’s High Court this month places even more onerous conditions on workers taking industrial action and is another means for employers to sue workers for profit losses during enterprise agreement disputes.

Under Australia’s Fair Work’s anti-strike provisions, industrial action can only be taken during bargaining periods for new enterprise work agreements (EBAs). All other action is illegal. In order to take EBA “protected” action, workers are required to go through lengthy procedures, including holding a secret ballot.

Even if the ballot endorses industrial action, the specific forms must be submitted in advance to the Fair Work Commission (FWC), the government’s industrial tribunal, for approval. The FWC, however, can terminate the “protected” action on a whole range of pretexts, including if the action threatens “to cause significant economic harm.”

On December 6, the High Court ruled that workers cannot take “protected” action for the remainder of any enterprise bargaining period if they, or their union, breaches an FWC order related to the dispute. The ban would remain in place even if the “breach” was quickly corrected or related to minor procedural matters.

Delivering its majority decision, the court said that the Fair Work Act was intended “to deny the immunity of protected industrial action” to all those who had “demonstrated they were not prepared, or prepared to take sufficient care, to play by the rules.” A dissenting judgement from Justice Stephen Gageler admitted that the ruling was a “sweeping denial of a union’s capacity to take protected industrial action.”

The High Court…

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