Orders relating to industrial action

Industrial action can be taken by employees or employers:

  • Employees may go on strike (refuse to attend or perform work) or impose work bans (refuse to perform one or more of their normal duties).
  • Employers may lock out their employees (refuse to allow them to work).

The Commission received a total of 955 applications in relation to industrial action in 2014–15. This represents a decrease of 3.4 per cent from the 2013–14 year, and a decrease of 24.9 per cent from the 2012–13 year.

Protected industrial action

Protected industrial action can occur after a list of proposed actions has been approved by a majority of employees in a workplace ballot process. This is done as part of bargaining for a new enterprise agreement.

The employee bargaining representative must apply to the Commission for an order requiring the ballot to take place. The Commission is required, as far as practicable, to determine the application within two days of it being made.

The Commission received 641 applications for protected ballot orders in the past year, an increase of 2.2 per cent on the previous reporting period.

Where protected industrial action is endangering the life, personal safety, health or welfare of the population, or part of it, or causing significant damage to the Australian economy, the Commission must suspend or terminate the action. The Commission must, as far as practicable, determine an application of this nature within five days of it being made, or make an interim order suspending action if this timeliness requirement cannot be met.

Unprotected industrial action

Where industrial action (or threatened action) is unprotected, an application can be made to the Commission to stop or prevent that industrial action. The Commission is required to determine the application within two days of lodgment or make an interim order stopping the action within two working days.

Case Study

International Flavours and Fragrances

On 22 January 2015 the food and beverage flavouring company, International Flavours and Fragrances (IFF), notified the Fair Work Commission of a bargaining dispute under s.240 of the Fair Work Act.

IFF had been negotiating with the National Union of Workers (NUW) since September 2014 for a replacement enterprise agreement for its employees at its Dandenong factory. The parties had yet to reach an agreement when negotiations stalled and protected industrial action was taken by NUW members from 27 January 2015.

It was at this time that IFF announced that it would lock out workers as they believed that the protected industrial action being taken, including paper work bans, was putting food safety at risk.

As the gates were closing on 27 January, to commence this lockout, some workers ran inside and occupied the canteen at IFF's premises.

In light of this, Commission Member, Deputy President Kovacic, conducted an urgent conference late on 27 January to deal with the bargaining dispute.

During this conference both parties expressed a desire to reach a negotiated outcome and indicated a willingness to move from their current positions. The Commission assisted the parties in identifying some potential proposals during the conference; however these required further consideration by the parties.

In order to solve the bargaining dispute, Deputy President Kovacic noted in a recommendation issued on 28 January that the parties needed to return to the negotiating table. To assist them to do this, the Commission indicated it would facilitate a further conference the next day.

The Commission also recommended that:

  • IFF give consideration to potential proposals identified at the conference and come prepared not only to respond to and discuss these potential proposals (and possible alternatives) but also to negotiate on its wage offer.
  • The NUW members cease their occupation of IFF premises as soon as possible.

The Commission noted in its recommendation that the prospects of the further conference would be greatly enhanced if both parties ceased their protected industrial action. This would allow discussions to occur in a less charged environment and would signify their commitment to reaching a negotiated outcome.

Throughout this time, the employees inside the factory, and supporters outside, were tweeting photos and comments about the lock-in using the hashtag #occupydandenong.

The Commission also discussed the dispute with senior NUW officials, which in turn resulted in discussions between those officials and senior IFF representatives.

As a result of those discussions, on 30 January, the workers occupying the canteen at the Dandenong factory vacated the site.

The parties appeared before the Commission in an all-day sitting on Saturday, 31 January which resulted in an in-principle agreement that was subsequently endorsed by the NUW members the following afternoon. The workers returned to work at 6am on Monday morning.

The Commission provided further assistance to the parties in late February in finalising the drafting aspects of the agreement. A quick resolution was reached with the assistance of the Commission.

Gary Maas from the NUW said: 'It is clear that this process – including the involvement of the Fair Work Commission – led to a resolution being reached more efficiently than through any other legal channel.'

The parties later filed an application seeking approval of their enterprise agreement, International Flavours & Fragrances (Australia) Pty Ltd and National Union of Workers – Collective Agreement 2015–2018, on 31 March 2015.

The agreement was approved by the Commission on 23 April 2015 and the bargaining dispute application filed in January was resolved and closed.

Chronology of events

Date Event
22 January 2015 s.240 bargaining dispute application lodged at the Commission
23 January 2015 Matter allocated to the Chambers of Deputy President Kovacic
27 January 2015 Workers occupy lunch room at the Dandenong site when informed IFF intended to commence a lock out
27 January 2015 Listing for 5:30pm conference
28 January 2015 Recommendation issued by Deputy President Kovacic
29 January 2015 8am conference
30 January 2015 Workers vacate lunch room at Dandenong site
31 January 2015 10am conference
1 February 2015 Parties reach an agreement
2 February 2015 Workers return to work at Dandenong factory
27 February 2015 Listing for 4pm conference
31 March 2015

Application for approval of the International Flavours & Fragrances (Australia) Pty Ltd and National Union of Workers – Collective Agreement 2015–2018 lodged with the Commission

23 April 2015 Agreement approved by the Commission

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Dealing with industrial action

The short timeframe for dealing with industrial action applications requires the Commission to have processes in place to rapidly consider these matters – particularly in the case of unprotected action or where protected industrial action is causing or threatening to cause significant economic harm to the parties.

When an urgent application related to industrial action is lodged, Commission staff contact the relevant Panel Head's Chambers to alert them to the application so that it can be quickly allocated to a Member. Panel Heads and Members may be contacted out of hours if required to facilitate the rapid handling of a matter.

To further assist with the timely resolution of matters, they may be listed outside of normal business hours, including on weekends. If a matter cannot be resolved within the legislative timeframe, the presiding Member will generally issue an interim order until a final order is issued.

Photo of a Fair Work Commission Order and Interim Order in relation to industrial action.

Image: The Commission received 955 applications relating to industrial action this year, the majority being applications for a protected action ballot order.

Table 22: Industrial action – lodgments
Type of application No. of applications
  2011–12 2012–13 2013–14 2014–15
s.418 – Application for an order that industrial action by employees or employers stop etc. 138 168 145 107
s.419 – Application for an order that industrial action by non-national system employees or employers stop etc. 2 2 3 0
s.423 – Application to suspend or terminate protected industrial action – significant economic harm etc. 7 5 1 0
s.424 – Application to suspend or terminate protected industrial action – endangering life etc. 16 11 11 16
s.425 – Application to suspend protected industrial action – cooling off 4 2 6 0
s.426 – Application to suspend protected industrial action – significant harm to third party 0 1 3 1
s.437 – Application for a protected action ballot order 1011 915 627 641
s.447 – Application for variation of protected action ballot order 17 12 12 6
s.448 – Application for revocation of protected action ballot order 57 38 54 44
s.459 – Application to extend the 30-day period in which industrial action is authorised by protected action ballot 156 115 124 133
s.472 – Application for an order relating to certain partial work bans 9 2 3 7
Total 1417 1271 989 955
Table 23: Industrial action – all applications, timeliness (median time days)
Applications KPI1 50% of matters 90% of matters
    2011–12 2012–13 2013–14 2014–15 2011–12 2012–13 2013–14 2014–15
Applications made under ss.418, 419, 423, 424, 425, 426, 437, 447, 448, 459 and 472 3 days 3 3 2 3 7 5 6 7
  1. The Commission has used the KPI targets from the 2013–14 Portfolio Budget Statements as a guide as the 2014–15 Portfolio Budget Statements were silent on these targets.
Table 24: Industrial action applications – protected action ballot orders and orders to stop industrial action – timeliness
Type of application 50% of matters 90% of matters
  2011–12 2012–13 2013–14 2014–15 2011–12 2012–13 2013–14 2014–15
s.418 – Application for an order that industrial action by employees or employers stop etc. – lodgment to first hearing (days) 1 1 1 1 3 2 2 3
s.437 – Application for a protected action ballot order – lodgment to first hearing (days) 3 3 3 3 7 5 7 9
s.437 – Application for a protected action ballot order – lodgment to determination (days) 4 3 3 3 7 6 7 7