Suspending industrial action

See Fair Work Act s.425

The Commission must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the Commission is satisfied that the suspension is appropriate taking into account the following matters:

• whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue
• the duration of the protected industrial action
• whether the suspension would be contrary to the public interest or inconsistent with the objects of the Fair Work Act,
• any other matters that the Commission considers relevant.[1]

The Commission may make the order only on application by:

• a bargaining representative for the agreement, or
• a person prescribed by the Fair Work Regulations.

Note: The Fair Work Regulations do not currently prescribe any additional persons.

See Fair Work Act s.426

The Commission must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the following requirements are met.

Requirement – adverse effect on employers or employees

The Commission must be satisfied that the protected industrial action is adversely affecting:

• the employer, or any of the employers, that will be covered by the proposed enterprise agreement, or
• any of the employees who will be covered by the proposed enterprise agreement.

Requirement – significant harm to a third party

The Commission must also be satisfied that the protected industrial action is threatening to cause significant harm to any person other than:

• a bargaining representative for the proposed enterprise agreement, or
• an employee who will be covered by the proposed enterprise agreement.

For the purposes of this specific requirement, the Commission may take into account any matters it considers relevant, including the extent to which the protected industrial action threatens to:

• damage the ongoing viability of an enterprise carried on by the person
• disrupt the supply of goods or services to an enterprise carried on by the person
• reduce the person's capacity to fulfil a contractual obligation, or
• cause other economic loss to the person.

Requirement – suspension is appropriate

The Commission must also be satisfied that the suspension is appropriate taking into account the following:

• whether the suspension would be contrary to the public interest or inconsistent with the objects of the Fair Work Act,
• any other matters that the Commission considers relevant.

Industrial action NOT suspended

Significant harm to a third party

Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd and Kentz E & C Pty Pty Ltd [2010] FWAFB 6021 (Lawler VP, Ives DP, Roe C, 6 August 2010), [(2010) 198 IR 360].

Facts

In the decision at first instance the Commission considered whether Woodside, Kentz and United (the Third Parties) were under threat of significant harm being caused to them by the protected industrial action undertaken by employees of Mammoet Australia Pty Ltd (Mammoet) at the Pluto Liquid Natural Gas Project on the Burrup Peninsula. The Construction, Forestry, Mining and Energy Union (the CFMEU) was the bargaining representative for the Mammoet employees.

The Commission found that as a consequence of the protected industrial action significant harm was threatening to be caused to Woodside, Kentz and United and it suspended the protected industrial action for a period of three months.

Outcome

The CFMEU appealed the decision. The focus of the arguments on appeal was the proper meaning of the expression 'significant harm' in s.426(3).

The Full Bench found that the Commission had erred in failing to appreciate that on the proper construction of s.426, 'significant harm' required the identification of harm that was over and above harm of the sort that is commonly a consequence of protected industrial action; and that the period of suspension ordered almost certainly had the practical effect of terminating the protected industrial action rather than merely providing a temporary respite from the effects of that action. Permission to appeal was granted.

On rehearing the Full Bench found that the sort of harm complained of by the Third Parties was the sort of harm that would be caused by industrial action by employees on any large construction project where such action affects the critical path of the project. The appeal was allowed and the Full Bench quashed the decision and order at first instance.

Relevance

'Significant harm' in relation to a third party requires the identification of harm that is over and above harm of the sort that is commonly a consequence of protected industrial action.

The Commission may make an order under s.426 only on application by:

• an organisation, person or body directly affected by the protected industrial action other than:
  • a bargaining representative for the proposed enterprise agreement
  • an employee who will be covered by the proposed enterprise agreement
• the Minister
• if the industrial action is being engaged in in a State that is a referring State as defined in section 30B or 30L – the Minister of the State who has responsibility for workplace relations matters in the State
• if the industrial action is being engaged in in a Territory – the Minister of the Territory who has responsibility for workplace relations matters in the Territory,
• a person prescribed by the Fair Work Regulations.

Note: The Fair Work Regulations do not currently prescribe any additional persons.

Related information

• Orders to stop or prevent unprotected industrial action

Link to application form

• Form F37 – Application for an order to suspend or terminate protected industrial action

All forms are available on the Forms page of the Commission's website.