Fair Work Commission

What is employee response action?

See Fair Work Act s.410

Employee response action for a proposed enterprise agreement means industrial action that:

• is organised or engaged in as a response to industrial action by an employer, and
• is organised or engaged in, against an employer that will be covered by the proposed enterprise agreement, by:
  • a bargaining representative of an employee who will be covered by the proposed enterprise agreement, or
  • an employee who will be covered by the proposed enterprise agreement.

Note: If a union is a bargaining representative of an employee who will be covered by the proposed enterprise agreement, the reference to a bargaining representative of the employee includes a reference to an officer of the union.^[1]

The industrial action taken by an employer can be either protected or unprotected industrial action.^[2]

The Commission has found that s.411 of the Fair Work Act (employer response action) is not relevantly different to the form of wording used in s.410 (employee response action), such that the decision in Australian and International Pilots Association v Fair Work Australia^[3] was equally applicable to a consideration of employee response action.^[4]

In Australian and International Pilots Association v Fair Work Australia the Full Court of the Federal Court considered whether there needed to be a link between employer response action and industrial action taken by employees. The Court found that the terms of the Fair Work Act limit an employer to some form of causally connected response to employee industrial action.^[5]

Employee response action must not relate to a demarcation dispute

The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene a Commission order that relates to a significant extent to a demarcation dispute.

References