A RECENT decision by the Australian Industrial Relations Commission (AIRC) has raised questions over the validity of common practices by unions around Australia when seeking to engage in lawful, protected industrial action under the Workplace Relations Act.
A RECENT decision by the Australian Industrial Relations Commission (AIRC) has raised questions over the validity of common practices by unions around Australia when seeking to engage in lawful, protected industrial action under the Workplace Relations Act.
In the case of Transfield Worley Joint Venture v AMWU, AWU, CEPU, it was successfully argued that unions must serve in person or by post, notices of intended industrial action, for the action to be lawful and protected.
The almost universal practice for many years has been for such notices to be served by fax. Notice has to be provided three days prior to the action actually commencing.
In the case in question, after the company’s existing Enterprise Bargaining Agreement (EBA) expired, negotiations began for a new EBA. However unions took exception with some of the proposals and sought to initiate protected industrial action.
Corrs Chambers Westgarth, acting on behalf of the Transfield Worley Joint Venture, filed a section 17 application in an attempt to stave off a strike.
“What happened in this case is that notice was faxed,” said Nicholas Ellery, a workplace relations partner at Corrs Chambers Westgarth.
“We argued that that wasn’t valid and lawful because the regulations and rules that support the Workplace Relations Act set out how you serve various documents, and we argued successfully that you weren’t allowed to serve these kind of documents in this kind of manner.”
He said that just because the standard way of serving such notices in most instances was via fax, this did not necessarily make them valid.
“Therefore in many instances, where people think that protected industrial action is occurring or is about to occur, it might be unlawful or unprotected,” he said.
“That means there’s a lot more options open for HR professionals to stop or prevent that action.”
On the basis of this reasoning, AIRC senior deputy president Brian Lacy decided that the action wasn’t protected, and issued orders for the planned strike to not proceed. The unions complied with his orders and the strike didn’t proceed.
In the course of the case, the Commission also found that non-union members were planning to take part in industrial action.
Given declining rates of union membership, it would be uncommon for strikes to occur where some non-members are not involved, Ellery said.
“If there’s non-union members involved in that action it’s almost certainly not protected and not lawful, therefore employers have a range of legal options available to them to stop the action,” he said.
In many, if not most, instances around Australia where unions organise strikes, employers and unions assume or accept that the strike is protected industrial action and therefore immune from orders that the strike cease or not go ahead, he said.
“If the decision is followed elsewhere, this assumption is actually wrong and employers would be able to prevent or stop strikes much more readily than they realise.”
