A Full Bench of Fair Work Australia has confirmed that protected industrial action ballots can be granted in circumstances where an employer has not agreed to bargain and there is no majority support determination in place. Protected industrial action ballot orders will generally be made if the applicant is genuinely trying to reach agreement with the employer, unless the proposal to reach agreement is a ‘sham’.
In November 2010, the TWU sought a protected industrial action ballot order relating to members employed by JJ Richards working at Canterbury City Council. JJ Richards had refused to bargain with the TWU, citing inability to pass on increased wage costs to the Council under its contract. Commissioner Harrison of FWA granted the order, rejecting arguments from JJ Richards that because bargaining had not commenced, and no majority support determination had been issued, a protected action ballot order could not be made.
The decision was appealed and succeeded on a technical point (the wrong branch of the TWU applied for the initial orders). The TWU subsequently wrote to JJ Richards enclosing a draft agreement and again seeking to bargain on behalf of its members at the Council. JJ Richards declined, and the TWU sought another protected industrial action ballot order. Commissioner Harrison issued the orders in February 2011 and JJ Richards appealed, represented by Ai Group and with AMMA, ACCI and the ACTU intervening.
On appeal, a Full Bench (Guidice J, Harrison SDP and Roberts C) upheld the decision of Commissioner Harrison. FWA rejected arguments from the employers that protected industrial action ballot orders could only be made if bargaining had commenced or if a majority support determination had been issued, finding no such requirement on the face of the Act. FWA also rejected arguments that the findings of Commissioner Harrison were inconsistent with the scheme of the Act.
The effect of the decision is that employees can organise and take protected industrial action in relation to a proposed agreement without having first exhausted all other avenues available to them in bargaining. Ai Group says, this is the ‘strike first, negotiate later’ approach. In addition, where an employer refuses to bargain and employees take protected industrial action, the employer may not be able to take employer response action because it will not be able to demonstrate that it is ‘genuinely trying to reach agreement’ (a pre-requisite to the taking of protected action).