![]() Two recent decisions in Australia have made access to lawful action harder to obtain and easier to lose once won. As this overview demonstrates, access to lawful industrial action under the FW Act involves navigation of complex pre-requisites by bargaining representatives. If such an order is breached, injunctive relief or a civil penalty may be obtained from the Federal Court of Australia. ![]() 2 Further, action which is unprotected may be the subject of an order from the industrial tribunal, the Fair Work Commission (FWC) that the order stop, not occur or not be organised under FW Act s 418. Stewart et al, Creighton and Stewart’s Labour La (.)ĥAction which is unprotected (which does not comply with the statutory pre-requisites) may be subject to injunctive relief or damages at common law for a range of potential liabilities, including breach of contract or the commission of an economic tort. 2 For discussion of these potential exposures see A.The FWC has not otherwise suspended or terminated industrial action in respect of the relevant negotiations (FW Act ss 423-426).ĤWhere protected industrial action complies with the pre-requisites and is commenced within 30 days of the declaration of the ballot approving the action, it can continue indefinitely unless an agreement is made, or the FWC orders that the action be suspended or terminated due to its impact on the bargaining parties themselves, or on third parties. The bargaining representative for the agreement has not ‘contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement’ (FW Act s 413(5)) Īny existing agreement has passed its ‘nominal expiry date’ (FW Act s 413(6)) and ![]() Required notice of proposed industrial action has been given (FW Act ss 413(4), 414) The bargaining representative is genuinely trying to reach an agreement at the enterprise concerned (FW Act s 413(3)) The action is organised and engaged in to support or advance claims in relation to the proposed agreement (FW Act s 409(1)) The bargaining representative has obtained a protected industrial action ballot order from the FWC (FW Act s 443), and the proposed action has been approved in a subsequent ballot of relevant employees (FW Act s 409(2)) 1 1 As to the ballot requirement see further B.The statutory pre-requisites for action to be protected are, amongst other things, Once employees have taken protected industrial action, employers may respond with their own protected industrial action in the form of a lockout of employees.ģProtected industrial action is action which meets the definition of ‘industrial action’ in FW Act s 19, and which has satisfied the statutory pre-requisites to obtain the status of ‘protected’ action. During negotiations for single-enterprise agreements, employees and their bargaining representatives may take protected industrial action in support of their claims in respect of the proposed agreement. I - Protected industrial actionĢIn Australia, the capacity of employees lawfully to take strike action is regulated by Part 3-3 of the Fair Work Act 2009 (Cth) (FW Act). The discussion will provide relevant context by setting out the legal rules with respect to access to the right to strike in Australia, and then review recent developments to demonstrate how access to the right to strike has been seriously compromised. ![]() The decisions make it harder to take lawful strike action and make it more likely that lawful strike action that does occur will be prevented where the action has a negative impact on members of the public. 1Two recent decisions in Australia have restricted access to the right to strike for Australian employees.
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