On Point - Issue #3
Stopping Industrial Action
- Under the Fair Work Act 2009 (Cth) a party may seek an Order from the Fair Work Commission (“FWC”) for industrial action to stop. There are also other provisions for the FWC to terminate or suspend industrial action.
- Contraventions of FWC Orders and some forms of industrial action requires Federal Court or Federal Circuit Court injunctions. Injunctions are equitable remedies. Any proceeding is subject to equity principles.
- A party may seek an FWC Order if the industrial action is not ‘protected’. Commonly this means one of the parties during bargaining has not been genuinely trying to reach agreement.
- Proving that a party has not been genuinely trying to reach agreement can be difficult. It does not simply mean driving a hard bargain. The term ‘surface bargaining’ is borrowed from the US. It means ‘going through the motions’ without any real intention to reach agreement. If a party is engaging in ‘surface bargaining’ it can be challenging to prove. Evidence is essential.
- A bargaining Order, such as one requiring a party to act in good faith, may later support an industrial action Order. If the facts are proven against the FWA requirements the FWC must make the Order for the industrial action to stop.