This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
The recent case involving the Transport Workers Union of
Australia (TWU) and employer JJ Richards &
Sons Pty Ltd (JJR) in Fair Work Australia
(FWA) gives unions power to use protected
industrial action in order to drive an employer to enter into
bargaining in circumstances where the formal bargaining regime
under the Fair Work Act 2009 (Cth) (FW
Act) has not commenced.
JJR subcontracted garbage collection in New South Wales for the
Canterbury City Council. The New South Wales TWU wrote to JJR
seeking to engage in bargaining. JJR rejected this
request. The NSW TWU lobbied the Canterbury City Council,
which passed a motion that JJR would seek to negotiate with the
TWU. JJR wrote to the Council refusing to bargain. The
Federal TWU then applied to Fair Work Australia for a Protected
Action Ballot Order (PABO).
At first instance, Commissioner Harrison concluded that the TWU
had been 'generally trying to reach an agreement' with JJR
and granted the application for a PABO.
JJR appealed the decision to the FWA Full Bench in December
2010, arguing that protected industrial action can be taken only
once the formal bargaining process under the FW Act has
commenced. Specifically, JJR argued that a PABO is an
incorrect mechanism to use in order for the union to achieve its
intentions of seeking to bargain with the employer. Lead
employer associations also intervened in the proceedings.
Vice President Lawler and Commissioner Bissett found that the
legislature did not intend that a Majority Support Determination
(MSD) be the only mechanism by which an employer
who refuses to bargain can be compelled to bargain. They found that
protected industrial action should be available as an alternative
mechanism to compel such an employer to bargain. Senior
Deputy President O'Callaghan dissented.
Ultimately, FWA upheld the appeal on a technicality regarding
the identity of the union.
The New South Wales TWU then brought a separate PABO application
before Commissioner Harrison on 16 February 2011 on similar grounds
to the original application by the Federal TWU. Commissioner
Harrison found that: 'In my opinion the Act [FW Act] does not
require a bargaining agent to seek a majority support
determination, good faith bargaining orders, or scope orders as a
prerequisite to seeking a protected action ballot order where an
employer refuses to commence bargaining.'
FWA has set a low threshold for unions to demonstrate that they
are genuinely trying to reach an agreement with an employer in
order to bring a PABO and take subsequent protected industrial
According to the Full Bench in the JJR case, the fact that
bargaining has not formally commenced under the Fair Work Act is
not a barrier to unions obtaining authorisation to take protected
Employers should be wary of unions and particularly the TWU in
threatening protected industrial action in circumstances where
employers refuse to bargain. They should always consider contesting
any FWA application brought by the union.
The approach of FWA still seems to be unsettled given the
tension between the decision of the FWA Full Bench in the JJR case
and other Full Bench decisions in relation to whether FWA can
authorise protected action prior to the commencement of
DLA Phillips Fox has successfully represented a number of
employers in key decisions concerning unions and their innovative
approaches to furthering their industrial agendas on major projects
and worksites around Australia. See for example Douglas
Heath v Gravity Cranes Services Pty Ltd  FWA 7751.
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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