See Fair Work Act s.424
The Commission must make an order suspending or terminating protected industrial action that is being engaged in or is threatened, impending or probable, if satisfied that the protected industrial action has threatened, is threatening or would threaten:
It has been established that the following terms are to be given their ordinary meanings.[1] The following dictionary definitions have been adopted previously:
Threaten – constitute a threat to, be likely to injure, be a source or harm or danger.[2]
Threat – a declaration of an intention to inflict pain, injury or other punishment.[3]
Section 424 of the Fair Work Act states that the Commission must suspend or terminate protected industrial action that is being engaged in or is threatened, impending or probable, if satisfied that the protected industrial action has threatened, is threatening or would threaten:
It has been established that the following terms are to be given their ordinary meanings.[4] The following dictionary definitions have been adopted previously:
Health – the general condition of the body or mind with reference to soundness or vigour.[5]
Welfare – the state of faring well, well-being.[6]
The appropriate test is not whether the protected industrial action 'would' endanger, but rather whether it would 'threaten' to endanger.[7]
The simple existence of a threat to safety or health, or welfare, is insufficient, even if it exists as a result of the protected industrial action. The danger must be probable, rather than simply a possible eventuality.[8]
Conduct that puts a person's physical or mental state at risk of material detriment, or that materially hinders or prevents improvements in a person's poor physical or mental state, may qualify as conduct that endangers personal health or safety.[9]
Even if conduct is not serious enough to endanger life, it might constitute a significant risk to personal safety or health.[10]
The impact of the conduct must be more than merely to cause inconvenience to the persons concerned. It must expose them to danger.[11]
The term welfare is not limited to situations where life, personal safety or health is endangered.[12]
The term 'population' refers to the total number or the body of the inhabitants of Australia.[13] The reference to 'part' of the population should be read as having a more collective meaning than simply 'individuals'.[14]
Section 424 of the Fair Work Act states the Commission must suspend or terminate protected industrial action that is being engaged in or is threatened, impending or probable, if satisfied that the protected industrial action has threatened, is threatening or would threaten:
Significant is defined as being 'Important, notable; consequential'.[15]
The length of time over which the economic damage is sustained is a relevant consideration.
Important in this context has been defined based on the dictionary meaning:
The Commission may make an order under s.424:
Under Regulation 3.10 the following persons may apply for an order suspending or terminating protected industrial action for a proposed enterprise agreement:
[1] Transit Australia Pty Ltd v Transport Workers' Union of Australia [2011] FWA 3410 (Asbury C, 31 May 2011) at para. 8.
[2] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44 (Kaufman SDP, 3 August 2009) at para. 29, [(2009) 187 IR 119]; see also University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 (O'Callaghan SDP, 4 December 2009) at para. 32.
[3] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44 (Kaufman SDP, 3 August 2009) at para. 30, [(2009) 187 IR 119].
[4] Transit Australia Pty Ltd v Transport Workers' Union of Australia [2011] FWA 3410 (Asbury C, 31 May 2011) at para. 8.
[5] University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 (O'Callaghan SDP, 4 December 2009) at para. 35.
[6] State of Victoria – Department of Health and Community Services v Health Services Union of Australia Print L9810 (AIRCFB, McIntyre VP, Williams DP, Hingley C, 3 March 1995) at para. 15.
[7] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44 (Kaufman SDP, 3 August 2009) at para. 29, [(2009) 187 IR 119].
[8] State of Victoria – Department of Human Services v Health Services Union [2012] FWA 8376 (Gregory C, 4 October 2012) at para. 80, [(2012) 225 IR 306].
[9] Victorian Hospitals' Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 (Boulton J, Acton SDP, Lewin C, 15 December 2011) at para. 51, [(2011) 214 IR 148].
[10] ibid.
[11] ibid.
[12] State of Victoria – Department of Health and Community Services v Health Services Union of Australia Print L9810 (AIRCFB, McIntyre VP, Williams DP, Hingley C, 3 March 1995) at para. 15.
[13] Transit Australia Pty Ltd v Transport Workers’ Union of Australia [2011] FWA 3410 (Asbury C, 31 May 2011) at para. 9.
[14] Coal & Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union Print P8382 (AIRCFB, Giudice J, Munro J, Larkin C, 29 January 1998) at p. 20, [(1998) 80 IR 14].
[15] Sucrogen Australia Pty Ltd v The Australian Workers' Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FWA 6192 (Spencer C, 27 August 2010) at para. 10; citing The New Shorter Oxford English Dictionary.
[16] BHP Coal Pty Ltd; Hay Point Services Pty Ltd v Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PR903492 (AIRC, Bacon C, 17 April 2001) at para. 38; citing the Macquarie Dictionary (2nd Revised Edition).
[17] Fair Work Regulations r.3.10.