This extract from a recnt application to the Fair Work Commision for an order prohibiting indutrial action sets out the nature of the jurisdiction.
[24] Section 418 of the Act provides as follows:
418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.
[25] As is apparent from s.418(1) the first step in the process is to determine what relevant action is occurring and whether that action is industrial action. Industrial action is defined, exhaustively, in s.19 as follows:
19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
[26] Industrial action is action of a particular kind. “Action” is also defined in s.12 of the Act to include an omission.
[27] In this instance it is not disputed that the relevant employees have notified of their intention to take sick leave and thereafter absented themselves from work for the day. The cases to which I was taken by the Applicants as to the ‘covert’ and coordinated taking of sick leave contain only a limited discussion as to how or where such action meets the description of industrial action in s.19. In Hillbus the Commission took the view that action of that kind could fall within any one of subsections (a), (b) or (c) of s.19(1).3 In Orora4 the Commissioner said the action was a practice the result of which is a limitation on or delay in the performance of work, and thereby placed reliance on s.19(1)(a) for the making of the order that ultimately issued.
[28] For my own part I think it most likely that such coordinated sick leave/absence, where it occurs, might most readily be captured by s.19(1)(c) on the basis that it would be a ‘failure or refusal by employees to attend for work’. Subsections (a) and (b) appear to relate to restrictions or limitations imposed in relation to work that is being performed as opposed to not attending for work at all.
[29] Given the limited time available to deal with this application and for the purpose of dealing with the arguments that have been advanced, I think it is only necessary to come to a view that the action in question comes within one of the subsections in s.19(1). If the Applicant’s first argument about the action itself, that is the absence from work, being protected action, is correct, then it would apply equally to industrial action under each of subsections (a),
3 Op cit at [17].
4 Op cit at [24].
(b) and (c). The same can be said in relation to the alternative argument that the evidence is insufficient to enable me to conclude that the action is happening, threatened, impending or probable, or is being organised. I am of the view that a coordinated campaign of the non-bona fide taking of sick leave and not attending for work falls within the definition of industrial action in s.19(1)(c) and proceed to deal with the matter on that basis.
[30] I propose to next deal with the evidence as to whether industrial action is happening, threatened impending or probable, or is being organised. The Applicants relied on the increase in sick leave on 14 and 15 February and the broader context in which the taking of sick leave occurred to establish that industrial action was happening etc., and was being organised by the Union.
[31] In relation to the organisation of the action by the union it was acknowledged that there was no direct evidence that the Union was orchestrating such action. Mr. Dornan denied that it was. While it may be accepted that in any ‘covert’ campaign by employees there will be difficulties for an employer in obtaining evidence that such a campaign is underway, in this instance there is a distinct lack of evidence to support a conclusion that the Union was organising a deliberate and covert campaign of sick leave.
[32] Orders for production of documents was directed to the union and documents were produced in response. A response from the Union in the nature of an answer to interrogatories was also provided by way of statutory declaration. This material did not make its way into evidence. The union circular that did form part of the evidence was consistent with the evidence of Mr. Dornan. It advised about the significance of the s.471 notice. It said that employees would not be paid if they elected not to attend or if they attended and implemented the go-slow. It made no mention of sick leave or any other kind of leave.
[33] I do not think the evidence in relation to the convenor’s message, even considered in the broader context of the ongoing dispute, takes the argument about union organisation of sick leave much further. It makes no mention of sick leave and in fact refers to employees taking a ‘hit to their pay’ by simply not attending for work. That is consistent with the messaging the Union gave its members in the circular. Aside from the fact that the message had found its way to the media, there was no conclusive evidence as to whom or how many people it was sent and nothing to suggest it was sent with the Union’s imprimatur. In my view the message reflected the personal views of the sender.
[34] I also note that in circumstances where the s.471 notice would have permitted the Union to actively campaign to have their members not attend work at all, the evidence shows that they did not take that option but rather left the decision about whether to attend, to attend and implement the go-slow or to not attend at all, to the employees themselves.
[35] In summary, I am not satisfied on the evidence that I can infer from any increase in sick leave numbers that the union has organised or is organising a covert campaign of sick leave amongst its members and I would decline to make orders against the Union on that basis.
[36] In relation to the employees themselves Ms. Abbas said she was unable to confirm how many of the employers who had notified ‘sick to advise’ on 14 February were not actually legitimately absent and entitled to personal leave. There was also some lack of clarity in the
evidence as to whether employees who had elected not to attend work because of the effect of the s.471 notice and had notified their employer accordingly may have also been included in the ‘sick to advise’ category thereby inflating the numbers in that category.
[37] I also observe that it is not a sufficient basis for the making of an order under s.418 to conclude that industrial action has at some point in the past occurred. The action must be happening, threatened, impending or probable. In this respect I note that unlike a number of the other matters in which sick leave absences have been the subject of orders under s.418, there is no history of such action in this case. The focus of the application was on the sick leave event of 14 February and extending into 15 February. In that respect it is noteworthy that the evidence in relation to train crew absenteeism on 15 February (as at 8.30am) was limited to the raw number of absences and showed that the total number of absences on sick leave at that time had dropped considerably from an updated total of 320 for 14 February, to 210.
[38] I am unable to conclude on the evidence that industrial action is now happening amongst the employees. Nor do I think that such action is threatened, impending or probable. There was no evidence that either the Union or the employees had threatened further action or that such action was contemplated. The Union eschewed that possibility. There was no evidence that there was any communication amongst the employees themselves to coordinate such action on an ongoing basis.
[39] To the extent the number of sick absences was high on 14 February I think this is at least partially explained by the fact that this was the day the go-slow was to commence. This is likely to have generated some uncertainty in the workforce as to how they might be affected and whether or not it was in their interest to attend on the day. There was some evidence that employees were concerned that they would attend for work and not take any protected action but nonetheless lose payment for the day as a result of the s.471 notice and some external delay on the network unrelated to any protected action on their part. That is a plausible concern. It may in turn have even prompted some illegitimate claims for sick leave on the day, but I do not think that this is sufficient to conclude at this point that there is a probability that such action is presently continuing or will be ongoing.
[40] Because of the view I have come to on the evidence it is unnecessary to determine the point raised by the Union as to whether in circumstances where an absence is protected employee claim action, it could appear to the Commission that there was industrial action that is not, or would not be protected industrial action – a necessary precondition for the making of an order about the industrial action. So far as I am aware, the point has not been raised in other proceedings. I simply make the observation that at the very least, the prospect of making orders restraining action described in s.471(4A)(b) and which is likely to be employee claim action even in circumstances where the action is coupled with a request for, or notification of, sick leave, seems problematic given the requirements of s.418(1). If, as the Union argued, the absence and the request for sick leave can and should be regarded as separate things, and assuming the latter to constitute industrial action as defined, given the need to frame an order that enjoins the industrial action5, the prospect of directing such an order at requests for sick leave would not be without its difficulties. Nonetheless, these are matters for further consideration at a later date.
5 Esso Australia Pty Ltd v. Australian Workers’ Union (2016) 258 IR 396 at 486 per Bromberg J.
[41] The application is dismissed.”
s.418 – Application for an order that industrial action by employees or employers stop etc. – Sydney Trains & NSW Trains v Australian Rail, Tram and Bus Industry Union (139V) – [2025] FWC 462 delivered 16 February 2025 per Roberts DP