Key Points: Employers should respond carefully when employees engage in
unprotected industrial action
The recent decision of the Federal Court in Qantas Airways
Ltd v Transport Workers' Union of Australia  FCA 470
provides valuable guidance for employers in formulating strategies
to respond to unprotected industrial action by employees.
In particular the decision has important implications for the
manner in which employers:
authorise meetings of employees that could potentially become
communicate their intention to observe their statutory
obligation to dock the pay of striking employees.
Strike action on 30 March 2009
The industrial action the subject of the Qantas Decision arose
as a result of meetings that were held by officials of the
Transport Workers' Union (TWU) with Qantas
baggage handlers at Sydney, Brisbane, Perth and Adelaide Airports
on 30March 2009. The Court found that the meetings led to unlawful
strike action. Some of the meetings were initially authorised by
Qantas based on assurances given by TWU officials that they would
be "non-disruptive" meetings.
Authorisation of worker meetings
The TWU argued that it had not engaged in unlawful industrial
action (with the exception of Sydney) as the meetings were
authorised by Qantas. Qantas countered that when certain sensitive
issues were raised with employees the meetings became disruptive
and went beyond the scope of the authorisation.
The Court ultimately found that while the workers were
authorised to have non-disruptive meetings they were not authorised
to engage in industrial action. Notwithstanding the Court's
finding, the lesson for employers is that they should specifically
prescribe, and record, the terms upon which any stop-work meetings
can be conducted. These terms might include the duration of any
meeting and who may attend.
Can employers retrospectively authorise industrial
Additionally, the Court suggested that employers can authorise
industrial action that has already occurred which would otherwise
have been illegal (ie. retrospective authorisation). It remains to
be seen, however, whether these comments will be endorsed in
subsequent cases. Employers should be cautious in authorising
industrial action that has already occurred and should seek advice
as whether they are still legally obliged to deduct employees'
Docking of pay under statute and suspension of work for
Employers have a statutory obligation to deduct a minimum of
four hours' pay of employees who engage in unlawful industrial
action. In the Qantas case, the workers who attended the meetings
asked whether they would have their pay deducted. When the relevant
Qantas manager indicated that their pay would be docked, the
employees refused to return to work.
The issue before the Court was whether the employees were
obliged to return to work, if requested by their employer, even
though they were told they would not to be paid. This question
arose because, at common law, workers are not required to work
unless they are to be paid. This is commonly referred to as the
If under statute, employers must
not pay employees for a period, how can they still
lawfully require employees to return to work? The Court found that,
once an employer communicated its intention to deduct four
hours' pay, the employees were not required to return work for
the remainder of the four hour period. This finding has important
implications for employers as they could inadvertently impair their
legal right to request workers return to work if they tell them
that they will be docking their wages.
Implications for employers
Employers should devise a carefully thought‑out
strategy that enables them to comply with their obligations while
not restricting their right to require employees to return to work.
Employers might consider refusing to answer the questions regarding
the docking of pay until they obtain legal advice. Alternatively
they could simply inform employees that they will comply with their
legal obligations – in any event employers should seek
advice as to whether they are obliged to dock the pay of employees
who engage in industrial action.
Importantly, the Court found that the suspension of the work for
wages bargain did not prevent employers from successfully obtaining
an order from Fair Work Australia requiring striking employees to
return to work. So if industrial action by employees is happening,
threatened, impending or probable, or being organised then
employers can still seek an order from Fair Work Australia that the
industrial action stop, not occur, and not be organised.
An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
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