Genuinely trying whilst a claim is unlawful
The union in this case sought protected action ballot orders against the employer, which the employer opposed. The employer argued that one of the terms the union was seeking to include in the proposed agreement was an unlawful term under s.194 of the Fair Work Act, because it was inconsistent with the right of entry provisions of the Act. The term dealt with paid time for union meetings, enterprise agreement consultation and travel time for delegates to attend the commission proceedings. The employer argued that by seeking to include an unlawful term in the agreement, the union was not genuinely trying to reach agreement and no protected action ballot order should be made.
At first instance, the commission found that the term was not unlawful as it did not confer a right of entry on the union that was inconsistent with the Act. Having so found,the commission made a protected action ballot order. On appeal the full bench upheld the finding, concluding that the agreement term did not deal with the place where meetings were held or oblige the employer to allow the union access to its premises.