You can’t stop what isn’t happening

In the first instance, Fair Work Australia ordered the AMWU to “not organise any industrial action by employees or delegate employees or any of them and to not aid, abet counsel, procure, induce or authorise its members or any other employees or delegate employees to engage in industrial action …”.

This order was made by the commission as a “protective measure” despite finding there was no evidence the union had organised or was organising industrial action.

On appeal the union, supported by the ACTU, argued that an order (under section 418) could not be made unless the commission found the union had organised or was organising industrial action. The Full Bench of FWA agreed with this argument and quashed the original decision.

http://www.fwa.gov.au/decisionssigned/html/2011fwafb4777.htm