Business groups say Fair Work ruling gives union right to strike even if employers refuse to bargain

In a ruling that has angered business bodies but won the support of the Government and unions, Fair Work Australia has said that unions can take industrial action in non-bargaining periods and where majority workplace support for industrial action has yet to be determined.

Yesterday’s decision relates to a dispute at waste-collection company JJ Richards, where directors refused to engage with a bargaining request by the Transport Workers Union. The tribunal’s full bench found the union had genuinely sought to negotiate, and therefore had the right to proceed to strikes.

“As we indicated earlier, there is nothing in the legislative provisions to suggest that a bargaining representative should not be permitted to organise protected industrial action to persuade an employer to agree to bargain,” the full bench of FWA said yesterday.

“Nor is there anything to suggest that a union, which is genuinely trying to reach an agreement for its members, but cannot get the employer to agree to bargain, should not be able to organise protected action unless it has the support of the majority of employees.”

Industrial relations lawyer Andrew Douglas has labelled the ruling “disturbing”.

“It shows all companies now that when they’re approached by a union, they must listen,” Douglas, principal at Macpherson + Kelly Lawyers, says.

“The refusal to listen empowers unions to jump all the hurdles and immediately go for a protected action ballot.”

Douglas says there are three lessons from this case:

1. When somebody comes to negotiate with you about an enterprise agreement, take it seriously.
2. Create documents to record these talks.
3. Case law now suggests refusing to negotiate industrial action is not acceptable.

Douglas says Labor’s Fair Work Act, which replaced the Coalition’s unpopular Work Choices legislation, spells out that employers should come to the table to negotiate.

While Douglas says the advantage for unions of yesterday’s ruling is that while they still have to go to a vote to take action, they don’t need to get majority support.

According to reports, the office of Workplace Relations Minister Chris Evans says if one party is genuinely trying to reach an agreement, it is simply not good enough for the party to refuse to sit down at the bargaining table.

But the Australian Industry Group has described the decision “disappointing” and said it would “create more risks for employers, particularly those who do not wish to make an enterprise agreement.”

“We have tested this law and the law has been found wanting. The decision is further evidence that the Fair Work bargaining laws are not working effectively in some areas and need to be amended,” AIG chief Heather Ridout says.

Ridout has previously argued that where an employer refuses to bargain, a union obtain a majority support determination to enable bargaining to commence, and must thereafter genuinely try to reach an agreement with the employer.

The Australian Chamber of Commerce and Industry has also said that industrial action must be an absolute last-resort option.

According to the Australian Financial Review, a spokesman for JJ Richards urged the Government to “address this anomaly before further unnecessary disruptions are caused not only in transport, but all industries.”

But University of Adelaide law professor Andrew Stewart said employer claims of chaos were a ”wild over-statement”, The Age reports.

Stewart has described the decision as a ”very straight-forward” interpretation of the Act, adding that the provisions were carried over from the Howard Government.