It is not at first apparent why a union which takes unprotected industrial action against an employer during bargaining for a new enterprise agreement would ordinarily be regarded as contravening the adverse action provisions of the Fair Work Act, on the basis that an employer is not to be assumed to exercise or not exercise a workplace right due to that activity. However such can be the case, due to a rather strained definition of the expression workplace right.
The Federal Court has held that unprotected industrial action taken by the AWU against Esso Australia during bargaining for a new enterprise agreement constituted a contravention of sec 343 of the Fair Work Act which prohibits industrial action (which is not protected industrial action) which is intended to coerce the other to exercise or not exercise a workplace right, described by Jessup J such “that would negate its choice in the matter of making an enterprise agreement, either at all or on terms other than those proposed by the respondent; or, as it was put by the parties in this case, pressure that would overbear the applicant’s will in this regard. “
The court also held that the conduct contravened sec 348 of the Act, which prohibits action against another person “with intent to coerce the other, or a third party, to engage in industrial activity which is defined defined in sub-sec 347(b)(iv) thus; “A person engages in industrial activity if the person:…
(b) does, or does not
(iv) comply with a lawful request made by, or requirement of, an industrial association.”
Justice Jessup did not decide whether the provision applied to protected industrial action because he was not urged to do so by the company.
Finally, the court held that the conduct complained of also constituted a contravention of sec 346 which prohibits the taking of adverse action against another person, inter alia, because the other person (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b)….” His Honour’s reasoning was that “The fact that the applicant had not complied with the request to make the agreement was the reason for the adverse action, in which respect the applicant relies on the reverse onus provisions in s 361 of the FW Act.”
An allegation of a breach of sec 340 was dismissed.
Esso Australia Pty Ltd v The Australian Workers’ Union (2015) FCA 758 delivered 24 July 2015