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See Fair Work Act 2009 ss.266–268
In certain circumstances, employees engaged in bargaining for an enterprise instrument can engage in protected industrial action to further their claims with respect to a proposed enterprise agreement.
The Fair Work Commission may suspend or terminate protected industrial action in certain situations.
If protected industrial action is terminated by the Commission, a post-industrial action negotiating period commences.
If at the end of that negotiating period the bargaining representatives have not settled all of the matters that were at issue during bargaining, a Full Bench of the Commission must make an industrial action related workplace determination.[1]
The key requirement for the making of an industrial action related workplace determination is that the protected industrial action has been terminated because:
The Commission must make the workplace determination as quickly as possible after the end of the post-industrial action negotiating period.
A Full Bench of the Commission terminated industrial action in relation to a proposed enterprise agreement being negotiated between Qantas Airways Ltd, QCatering Ltd and the TWU to cover Qantas ground handling operations. As the bargaining representatives did not settle all of the matters at issue between them during the 21 day period following the termination of the industrial action, the Commission was required to make a workplace determination as quickly as possible thereafter.
The Full Bench considered that, in deciding the unresolved terms of the workplace determination, the current enterprise agreement was an appropriate starting point, because it represented the package of terms the parties had previously agreed to apply. The Commission considered that it was relevant to have regard to practices of other employers in the airline industry and the terms and conditions of their employees.
The Full Bench also confirmed that the approach adopted in the matter of CFMEU v Curragh Queensland Mining Ltd (which dealt with workplace determinations as they existed in the predecessor legislation) could equally be applied under the Fair Work Act. The Full Bench also confirmed that dealing with each of the issues in dispute between the parties could also include dealing with the issue by choosing not to insert a particular term or dealing with an issue in a manner other than that suggested by a party.
Overall, the Full Bench was satisfied that the workplace determination passed the better off overall test, and did not contain any clauses other than mandatory terms, core terms or terms that dealt with the matters still at issue at the end of the post-industrial action negotiation period.
On 31 May 2011, the Parks Victoria Agreement 2008 reached its nominal expiry date. The agreement covered Parks Victoria, 4 unions (the CPSU, ASU, AWU and APESMA) and just over 1,000 non-executive employees of Parks Victoria.
On 11 July 2012, the Commission made an unopposed order terminating industrial action that had taken the form of bans on engaging in emergency response work. During the post-industrial action negotiating period, Parks Victoria and the unions did not settle all of the matters that were at issue during bargaining for the proposed agreement.
A substantial part of the proposed workplace determination was agreed between the parties. However, significant matters such as wages and allowances increases were not agreed and required determination by the Full Bench.
Upon making the determination, the Full Bench was satisfied that it passed the better off overall test, included all of the agreed terms, core terms and mandatory terms, and dealt with all of the issues in dispute at the end of the post-industrial action negotiation period.
[1] Fair Work Act s.266(1).
[2] Fair Work Act s.266(2); see also Explanatory Memorandum to Fair Work Bill 2008 at para. 1096.