The Full Court of the Federal Court recently determined that the
Fair Work Act provides a union with the right to take protected
industrial action to bring an unwilling employer to the bargaining
In JJ Richards & Son v Fair Work Australia, a Full
Court of the Federal Court of Australia confirmed that a union can
take protected industrial action in the face on an employer who
does not wish to bargain for an enterprise agreement. Importantly,
the Court confirmed that there is no requirement for a union to
seek a majority support determination or scope order
before undertaking protected industrial
The facts leading to this decision can be summarised as
In early 2011, the TWU approached JJ Richards to bargain for an
enterprise agreement. JJ Richards refused, indicating that, at that
time, the Company did not consider that an enterprise agreement was
viable for its business.
A short time later, the TWU applied for and obtained
authorisation from Fair Work Australia to conduct a protected
industrial action ballot to determine if the employees wished to
take industrial action in support of their claim to pursue an
JJ Richards, and later the Australian Mines and Metal
Association, challenged the order granted by Fair Work Australia.
JJ Richards contended that the Fair Work Act prevented a
protected industrial action ballot being held and action taken
before bargaining had commenced.
In a unanimous decision, a Full Court of the Federal Court of
Australia considered the statutory scheme and found that there was
no requirement in the legislation that required the parties to have
commenced bargaining before a protected action ballot could be
The Court held that the only requirement to be satisfied is that
the union must have 'genuinely tried' to bargain, which
the Court found was satisfied by writing to the Company.
Key lessons for employers
Employers should take careful note of the decision and ensure
that when in receipt of correspondence from a union seeking to
initiate discussions relating to bargaining for an enterprise
the correspondence is carefully reviewed;
any draft response carefully considered and well
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.
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