The Fair Work Act 2009 (Cth) ('the
Act') provides specific mechanisms by which a union
can compel an unwilling employer to bargain.
However, a recent decision by the Full Bench of Fair Work
Australia has established that a union facing an employer who is
unwilling to bargain does not have to seek a majority support order
before making an application for a protected action ballot
The effect of the decision is that protected industrial action
is available as a means to compel an employer to bargain, even in
the following circumstances:
Where bargaining has not yet commenced
The employer has refused to bargain
Fair Work Australia has not otherwise ordered the employer to
There may not be majority support for an enterprise agreement
from employees to be covered by the agreement.
JJ Richards & Sons ('JJ Richards') refused the
Transport Workers Union's ('TWU')
request to bargain for an enterprise agreement to cover its
employees. JJ Richards cited operational reasons for the refusal,
specifically that the agreement sought related to a garbage
collection contract which was shortly to conclude.
At this stage, bargaining had not commenced between the parties
and the TWU had not employed the specific provisions of the
legislation which enable Fair work Australia to compel an employer
These specific provisions allow a bargaining representative to
make an application for a Majority Support Determination and seek
Bargaining Orders where an employer is refusing the bargain.
However, upon JJ Richards refusal and in spite of these
provisions, the TWU made an application for a protected action
ballot order to enable industrial action to be engaged in by
The TWU argued that because bargaining had not yet started, the
provisions should not apply to restrict the relevant employees from
making such an application.
The Full Bench held that the TWU was entitled to seek such an
order, noting that if the Parliament intended the provisions to
mandate that a ballot order should not be available unless
bargaining had started, it would have employed language to make
It held, '[t]he fact that it did not do so is a strong
indication that no such condition is to be implied. The contrast in
language could not be plainer.'
A sticky situation for employers
It follows from this decision, that an employer may be faced
with protected industrial action even in circumstances where it has
not agreed to bargain and it has operational reasons for refusing
to do so. The decision suggests this may even be the case where
there is little support from the relevant employees for an
enterprise agreement to cover them.
This decision also highlights that the test to gain a protected
action ballot order, requiring the applicant to
'genuinely' be 'trying to reach an
agreement' is not a difficult one to pass.
The tribunal held that '[i]n a case in which a
bargaining representative legitimately requests an employer to
bargain and it is clear the employer does not agree to do so, it is
likely that the representative will be found to be genuinely trying
to reach an agreement, unless there is material from which it could
be concluded that the request to bargain is a sham.'
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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