• 2 For discussion of these potential exposures see A. Stewart et al, Creighton and Stewart’s Labour La (...)

5Action which is unprotected (which does not comply with the statutory pre-requisites) may be subject to injunctive relief or damages at common law for a range of potential liabilities, including breach of contract or the commission of an economic tort.2 Further, action which is unprotected may be the subject of an order from the industrial tribunal, the Fair Work Commission (FWC) that the order stop, not occur or not be organised under FW Act s 418. If such an order is breached, injunctive relief or a civil penalty may be obtained from the Federal Court of Australia. As this overview demonstrates, access to lawful industrial action under the FW Act involves navigation of complex pre-requisites by bargaining representatives. Two recent decisions in Australia have made access to lawful action harder to obtain and easier to lose once won.

• 3 [2017] HCA 54.

7The meaning of this section was recently considered by the High Court in Esso Australia Pty Ltd v The Australian Workers Union (Esso).3 During negotiations for an enterprise agreement, the Australian Workers Union (AWU) engaged in industrial action in support of its position. The employer, Esso Australia, obtained an order under FW Act s 418 that the AWU stop organising unprotected industrial action. Believing that the action it was organising was protected industrial action, the AWU continued the action. However, it was subsequently held that the relevant industrial action was unprotected, meaning that the AWU had continued to take industrial action for a short period of time in breach of the FWC order.

• 4 Esso v AWU (2015) 253 IR 304; Esso v AWU (2016) 245 FCR 39.

9In accordance with the previous interpretation of the section, it was held in the lower courts that s 413(5) did not prevent protected industrial action occurring where the relevant breach of an order subsequently had been rectified or the order was spent.4 This meant that if the union rectified its breach, or was not in breach at the time it sought to take future industrial action, it could take protected industrial action again.

• 5 [2017] HCA 54 [53].

10This approach was rejected on appeal by the High Court in Esso by a majority of 4:1. Considering the statutory context and history of the provision, the majority concluded that a bargaining representative could not meet the pre-requisites to take protected industrial action if, at any point during negotiations for the agreement, they had breached any order of the FWC or a court. Casting the right to take protected industrial action as a ‘privilege’, the majority observed that the apparent purpose of the provision was ‘to ensure that persons who have shown that they cannot be trusted to comply with orders relating to the agreement or matters arising from bargaining for the agreement are not to be trusted with the immunity afforded in relation to protected industrial action’.5

• 6 [2017] HCA 54 [103], [104].

12The scheme of the FW Act gives the FWC the power to make a range of orders in relation to bargaining for an agreement including good faith orders and orders in relation to industrial action, to facilitate fair, efficient and flexible agreement making. Orders are part of the scheme of the Act, and inadvertent (or otherwise) breaches are a common occurrence. Requiring strict compliance with all orders, on pain of loss of access to protected industrial action, has the effect in practice of further juridifying a system which should be flexible enough to accommodate the natural ebb and flow of industrial disputation that accompanies collective bargaining. It restricts access to the right to strike as a ‘punishment’ for past transgressions, however minor. In dissent in the High Court, Gageler J observed that the approach created industrial outlaws, and was not consonant with a statutory scheme designed to be ‘fair, flexible and efficient’.6

• 7 [2018] FWC 632.

13The second decision with profound implications for access to the right to strike in Australia is Sydney Trains.7 Sydney Trains is the company responsible for the train network in Suburban Sydney. The Australian Rail, Tram & Bus Industry Union (RTBU) represents employees of Sydney Trains. During prolonged negotiations for a new enterprise agreement the RTBU notified protected industrial action in the form of indefinite overtime bans, and a 24-hour work stoppage. However, before the action could commence, Sydney Trains brought proceedings in the FWC seeking suspension of the protected industrial action.

• 8 Ibid. at [44].
• 9 Ibid. at [46].

15Sydney Trains and the Minister argued that the proposed industrial action would endanger the welfare of Sydney commuters and cause damage to the local economy. The FWC suspended the industrial action for six weeks, finding that the welfare of part of the population was endangered due to the large number of commuters who rely on the train system to get to work, school or to ‘go about their business’, and the increased congestion on the roads that would occur.8 There would also be resultant damage to the economy of Sydney from the impact of commuters being unable to attend for work.9

• 10 [2013] FWCFB 5982.

18However, the interpretation of the phrase ‘endanger welfare’ in s 424 of the FW Act extends well beyond what would ordinarily be thought of as an essential service. In an earlier decision, Monash University v NTEU10 protected industrial action by university academics was suspended because it was held that a ban on releasing exam results endangered the welfare of university students. Suspension of the action for two weeks meant that all results were released, and the impact of the strike was undermined. Likewise, the decision in Sydney Trains decision may effectively rule out access to industrial action for public transport workers where the proposed action impacts substantially on access to public transport. In these cases, the right to strike was forced to give way in the face of inconvenience and worry on the part of those affected by it. This hardly seems to strike the right balance.