By Alexandra Marriott
A recent decision by Fair Work Australia, which rejected an application by Wormald to suspend or terminate protected industrial action under section 424 of the Fair Work Act 2009, is certain to raise real concerns for business about the narrowing interpretation of the provision.
Wormald and the Communications Electrical Plumbing Union (CEPU) have been negotiating since March last year for a deal covering service technicians in the Brisbane, Sunshine Coast and Gold Coast regions.
The relevant section of the Act, s424, is one that largely replicates the provisions of the Workplace Relations Act 1996. S424 sets out the criteria for Fair Work Australia’s consideration of suspending or terminating protected industrial action by relevance to whether “…the protected industrial action has threatened, is threatening, or would threaten…to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or…cause significant damage to the Australian economy or an important part of it”.
The decision is one that again seems to broaden the purview of the matters which Fair Work Australia must consider when making a determination.
In this case, the decision is largely based upon a determination by the Full Bench that the tribunal was entitled to consider alternative or defensive measures to ameliorate the harm the industrial action undertaken might cause.
In brief, the Full Bench stated that Wormald could reach agreements with other service providers, or with existing supervisors not covered by the ballot, to ensure that disruption to its services would be minimised. The Full Bench expressed its disagreement with the claims put by Wormald in terms of Wormald’s capacity to ‘minimise risk’:
“In particular, we do not accept that Wormald cannot put into place arrangements that will assist in minimising the risks associated with the bans. Further, we do not consider that the ban on paperwork and the manner in which it has been applied, would mean that the ban would have any impact as to invoke the operation of s424.”
Wormald’s lawyer’s remarks on this point are salient; he noted that this was “a significant change from a number of previous decisions in which single Commissioners have found that such considerations were irrelevant when determining whether the criteria set out in section 424 were made out”.
The case appears to be suggestive of a broader trend that the capacity for employees to undertake protected industrial action may be more broadly interpreted while, on the other hand, the capacity of business to limit this action is more closely proscribed.