Timing of Orders Crucial to Protected Action
When a union failed to comply in good time with an interim bargaining order issued by the Fair Work Commission, it did not mean that subsequent industrial action was unprotected, according to the Federal Court.
The union had been required, by the interim orders, to make certain undertakings and was given specific deadlines to do so. It failed to meet the deadlines by a few days, but did actually otherwise comply with the orders. It then took action which the employer argued was unprotected because it had failed to comply with the orders.
The union argued it had substantially complied with the orders but the court said this was not a mitigating factor. Substantial compliance was not sufficient, the court decided, and made the point that if it accepted that argument, then what other aspects of the orders might the union have failed to meet which would nevertheless mean it had ‘substantially complied’?
Despite this, the court determined that the failure to comply had occurred in the past, and the legislation did not say that a failure that had applied to a bargaining party, as distinct from currently applying, would remove protection from any industrial action taken.
Effectively, the court said the interim orders had applied at a certain time and the language of the Fair Work Act did not support the view that these contraventions continued to affect the ability of the union members to take protected action at some future time.
This decision focuses on a narrow point. But it is important. If a party fails to comply with an interim bargaining order, it does not necessarily mean that any future industrial action taken will automatically be unprotected, and hence actionable for damages. Bargaining parties need to ensure that before launching proceedings alleging unprotected action, the orders which they claim are being contravened are actually current.