Immunity

See Fair Work Act s.415

No action lies under any law (whether written or unwritten) in force in a state or territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve:

• personal injury
• wilful or reckless destruction of, or damage to, property, or
• the unlawful taking, keeping or use of property.

However, this does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action.

NO immunity from legal action

BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union (No 1)

BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union (No 1) [2012] FCA 935 (28 August 2012), [(2012) 226 IR 149].

Facts

BlueScope operate a blast furnace which produces 300 tonnes of molten iron ore per hour. The AWU gave BlueScope notice of the intention of its members to take 'protected industrial action'. It proposed that both the day shift and the night shift would stop for four hours.

BlueScope submitted that it was not feasible to have two stoppages of four or more hours unless there was at least 16 hours between the stoppages. There were considerable difficulties in turning the blast furnace on and off. The furnace must also be regularly emptied of the molten iron ore which collects at its base. If this is not done, molten iron ore will do significant internal damage to the furnace. Bluescope sought an interlocutory injunction to prevent the industrial action from occurring.

Outcome

The Federal Court held that there was a triable issue as to whether the potential abandonment or neglect of the blast furnace, in the manner proposed by the AWU in taking the industrial action, involved or was likely to involve 'reckless destruction of, or damage to, property'. Accordingly, there was a triable issue as to whether the immunity on the protected industrial action conferred by s.415(1) of the Fair Work Act was lifted. As a consequence, there was a triable issue as to whether Bluescope was entitled to pursue a claim in tort against the AWU in relation to that industrial action.

The Court directed that the parties agree on a form of order which included that:

• stoppages not exceed four hours in duration
• stoppages to have at least 16 hours between them, and
• there was to be no stoppage if there was a disruption of, or irregularity within, the blast furnace at the time the stoppage was due to start.

Relevance

Just because industrial action is 'protected' under s.408 does not mean that legal action cannot be taken in regard to the industrial action where the exceptions in the immunity provisions of s.415(1) are met.

Note: This was a decision about whether to issue an interlocutory injunction.