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 order.

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 bargain
  • 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 to bargain.

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 relevant employees.

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 decision

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 that clear.

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.'

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