Australia: Unions don't need to jump hurdles before seeking action ballots: Court rejected JJ Richards appeal

On 20 April 2012, the Federal Court delivered its judgment in the JJ Richards case, confirming that unions facing an employer who refuses to bargain are not obliged to seek a majority support order or overcome other obstacles before asking members to authorise industrial action.

In JJ Richards & Sons Pty Ltd v Fair Work Australia, the Court upheld FWA decisions that permitted the Transport Workers' Union ("TWU") to seek a protected action ballot after waste contractor JJ Richards declined the Union's request to commence bargaining.


On 24 December 2010, the TWU (second respondent) wrote to JJ Richards (first applicant) stating that it sought to "bargain for an enterprise agreement with your company covering your employees on the Canterbury Council contract". The "major elements of the agreement" were thereafter summarised. On 7 January 2011, JJ Richards responded, saying that it did not "believe that bargaining for an enterprise agreement is viable". One of the reasons provided was that the Canterbury Council contract was to cease on 26 February 2012.

On 1 February 2011, the TWU applied to Fair Work Australia for a protected action ballot order under section 443 of the Fair Work Act 2009 (Cth). A Commissioner made the order which was sought on 16 February 2011. JJ Richards filed a Notice of Appeal on 7 March 2011. On 9 March 2011, the Australian Mines and Metals Association Inc ("AMMA") (second applicant) also filed a Notice of Appeal.

A Full Bench of Fair Work Australia heard the appeal on 18 April 2011. On 1 June 2011, the Full Bench delivered its judgment. Both appeals were dismissed. The Full Bench rejected the principal argument put forward by both appellants, namely, that a protected action ballot could not be granted pursuant to section 443 of the Act unless bargaining has commenced, or, where an employer is unwilling to bargain, unless an applicant has exhausted the steps available to it under the Act to force the employer to do so.

In these proceedings, a writ of certiorari was sought to quash the decisions of Fair Work Australia (first respondent) made on 1 June 2011 and 16 February 2011. Mandamus was sought requiring Fair Work Australia "to hear and determine the... application... according to law". The applicants submitted that FWA had misconstrued the terms of section 443 and regarded itself as subject to a statutory obligation to make the order when, in fact, on a proper construction of the section, there was a statutory prohibition upon the making of the order. The applicants' case was that the correct construction of section 433 is to be found not merely in the words of the section itself, but in other provisions of the Act which establish the setting in which a protected action ballot order might be sought, and made.


The Bench rejected the applicants' arguments that the Act prohibited FWA from making a protected action ballot under section 443 unless bargaining commenced.

Justice Tracey submitted that there was no warrant to read into the sub-section words of limitation which do not appear. He said that the legislature required FWA to make a protected action ballot order if the two conditions set out in section 443(1) were satisfied, even if bargaining between the employer and employees had not commenced.

Similarly, Justice Flick said that the subsection only imposed two express statutory constraints on the mandatory obligation imposed on FWA to make an order:

  • there must be an application made under sections 437; and
  • FWA must be satisfied that each applicant has been, and is, genuinely trying to reach an agreement.

His Honour felt that implying any further constraint on the operation of section 443(1) would "confront the difficulty of reading into a statutory provision words which are not there" and would propel the Court "from its accepted role of interpreting the will of the Legislature into the territory of itself redrafting legislation".

His Honour submitted that the TWU had satisfied the "genuinely try" requirement by writing to JJ Richards on 24 December 2010. His Honour felt that the exchange of correspondence – the TWU letter and JJ Richards' response – was sufficient to satisfy the precondition to the exercise of power conferred by section 443(1).

The Bench did depart from the findings of the FWA Full Bench on one point. Justice Jessup said that FWA was incorrect in its conclusion that there was "nothing in the legislative provisions to suggest that a bargaining representative should not be permitted to organise protected industrial action to persuade an employer to agree to bargain". He said that unions could use bargaining orders to "bring an employer to the bargaining table... without taking industrial action." He suggested that "although limited to an extent, the legislature has, both specifically and in some detail, turned its mind to the means by which an unwilling employer might, to use the Full Bench's metaphor, be persuaded to come to the bargaining table".

Justice Jessup also suggested that there was much to be said for the applicants' case "as a matter of broad statutory purpose". He said "in the sense that protected industrial action must, necessarily, relate to a proposed enterprise agreement (section 408), it is legitimate to point out, as the applicants did in their submissions, that the ability to take protected industrial action is to be seen as a part and parcel of the statutory regime for bargaining in pursuit of, or in resistance to, the making of such agreements".

Justice Tracey shared Justice Jessup's reservations about the Full Bench's reservations, commenting that "the other provisions of the Act to which [Justice Jessup] refers suggest that a less confrontational and more ordered process was available to the Union had it wished to avail itself of it".

Notwithstanding the aforementioned observations, the Bench felt that it was impossible to construe section 443(1)(b) as the applicants proposed. While there might be reason to perceive in section 443(1)(b) a departure from the scheme of regulated bargaining set out by Pt 204 of the Act, this contributed little to the task of construction which confronted the Full Bench. There was no basis for the introduction of additional requirements or conditions which might have been, but which have not been enacted.

Ultimately, the Bench dismissed the appeal, suggesting that both of the decisions made by FWA were a valid exercise of the power conferred by section 443(1) of the Act.


This decision turns on its head the conventional wisdom about the stages of the bargaining process. The decision provides a powerful tool in the arsenal of unions to pursue bargaining objectives.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.