See Fair Work Act s.418
If it appears to the Commission that unprotected industrial action by one or more employees or employers:
the Commission must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period specified in the order (the stop period).[1] Such an order may contain provisions that seek to achieve that purpose in direct terms, and additional terms that are necessary for, incidental to, or consequential upon the exercise of power for that purpose.[2]
The Commission may make the order on its own initiative, or on application by:
In making the order, the Commission does not have to specify the particular industrial action, however the order must be directed at the industrial action (existing or potential) which has been identified, and be sufficient to disclose the legal operation of the order and provide sufficient certainty to allow compliance with it.[3] The Commission's power to make orders is limited to the industrial action that is the subject of the application before it.[4]
If the Commission is required to make an order stopping or preventing industrial action that was authorised by a protected action ballot:
the Commission may state in the order whether another protected action ballot is required before the action can be engaged in after the end of that stop period.[5]
An application for an order to stop or prevent unprotected industrial action made to the Commission must include a completed and signed application form [Form F14].
A draft order may also be included.
A draft order should identify industrial action by its nature and character in a way that is meaningful for the parties.[6]
Note: A party applying for an order should not seek to include a term in any order that is clearly beyond power or is contrary to authority. The Commission’s powers in respect of these orders is limited to stopping or preventing the industrial action. The Commission has held that orders requiring that ‘employees be available for work, and perform work as required’ are clearly beyond power.[7]
Parties who are legally represented have a particular obligation to alert the Member to any term sought that is beyond power or contrary to authority and should be prepared to canvass with the Member the doubt as to power or argue that the contrary authority was incorrectly decided or is otherwise distinguishable.[8]
All forms are available on the Forms page of the Commission's website.
See Fair Work Act s.419
As set out in Part 1 – How to use this benchbook, only national system employees and national system employers can participate in protected industrial action under the Fair Work Act. This means that industrial action taken by non-national system employees will not be protected industrial action under the Fair Work Act. However the Commission has power to make orders for industrial action taken by persons outside of the national system to stop, if the industrial action is likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation.
If it appears to the Commission that industrial action by one or more non-national system employees or non-national system employers is:
will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation; then the Commission must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period specified in the order.
The Commission may make the order on its own initiative, or on application by:
In making the order, the Commission does not have to specify the particular industrial action.
See Fair Work Act s.421
A person to whom an order to stop or prevent industrial action applies must not contravene a term of the order. This includes an interim order.
However, a person is not required to comply with an order if:
A court may grant an injunction on such terms as considered appropriate if:
Industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
Application made using Form F14 – Application for an Order to stop etc. (Unprotected) industrial action made to Commission
Commission makes an order that the industrial action stop, not occur or not be organised (as the case may be) for the stop period.
Industrial action continues in contravention of the Commission order.
A person affected by the contravention, or a Fair Work Inspector, may make an application to the courts for the enforcement of the Commission order.
If the Court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision, the Court may make any order the Court considers appropriate.
The maximum penalty that can be ordered by the court:
[1] United Voice v Foster's Australia Limited t/a Carlton and United Breweries Limited [2014] FWCFB 4104 (Hatcher VP, Gooley DP, Lee C, 2 July 2014) at paras 39–41.
[2] ibid at para. 38.
[3] Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 (25 May 2016) at paras 33, 48.
[4] Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 (6 March 2008) at para. 39.
[5] Fair Work Act s.418(4).
[6] Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 (25 May 2016) at para. 54.
[7] E. Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174 (Ross J, Gostencnik DP, Simpson C, 29 January 2014) at paras 45–47, [(2014) 240 IR 254].
[8] ibid at para. 47.
[9] Fair Work Act s.420(1); see for eg Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Limited [2014] FWCFB 657 (Hatcher VP, Catanzariti VP, Roberts C, 31 January 2014) at para. 13, [(2014) 240 IR 146]; citing McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568 (Hatcher VP, Sams DP, Bull C, 3 May 2013) at para. 27, [(2013) 233 IR 252].
[10] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 (6 December 2013) at para. 132.
[11] ibid., at para.133.
[12] Fair Work Act s.420(2)
[13] McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568 (Hatcher VP, Sams DP, Bull C, 3 May 2013) at para. 28, [(2013) 233 IR 252]; see for eg Construction, Forestry, Maritime, Mining and Energy Union v DP World Melbourne Limited and Others [2019] FWCFB 6430 (Gostencnik DP, Millhouse DP, Spencer C, 19 September 2019).
[14] ibid., at paras 37–38.
[15] Fair Work Act s.420(3).
[16] See for eg Australian Capital Territory v Australian Education Union [2010] FWA 3454 (Deegan C, 29 April 2010).