An employer has failed to persuade the Fair Work Commission (FWC) to place a restraint on the type of industrial action its employees could take, agreeing with the union that industrial action tends to be inconvenient.
The employer argued that the proposed industrial action could result in loss or damage to property. This was argued on the basis that cargo the employer carried included hazardous and perishable commodities, much of which would deteriorate and spoil if not delivered in a timely manner.
The union countered that it had already agreed in its proposal to give five days’ notice of taking disruptive industrial action, (as distinct from three it could under other circumstances). Additionally, the union made the salient point that one of the purposes of taking industrial action was to inconvenience the employer – to put some pressure on, to change bargaining postures.
The employer asked FWC to issue orders requiring the union to guarantee it would not take any action that would prevent the movement of the perishable goods. It effectively wanted FWC to restrain the union members in its employ for doing, or not doing, anything that would hold up the transport of the goods.
The FWC agreed with the union, also making the point that FWC did not have the power to impose a condition on the means by which the industrial action proceeded. FWC also made the point that to impose the restraint sought was contrary to the scheme of the legislation. In addition, FWC noted the employer had not made further application to have the notice of action extended to seven working days, or sought to provide compelling evidence under the relevant laws, that there were exceptional circumstances in this case.
This case shows that employers need to have strong evidence that proposed industrial action will do significant damage before FWC will intervene and curb industrial action options for employees.