Employer groups says government must urgently address “strike before bargaining” ruling

The Australian Chamber of Commerce says the Government must address the impact of a Fair Work Australia decision that it claims effectively gives unions approval to strike before they have secured orders from Fair Work Australia to force an employee to the bargaining table.

The employer group’s anger was sparked by a decision handed down by the full bench of Fair Work Australia on December 23 over a dispute between the Transport Workers Union and waste management company JJ Richards & Sons.

The dispute started back in February 2010, when the TWU wrote to the company seeking to commence bargaining on a new enterprise agreement. JJ Richards declined, saying it was happy with its current agreement and arrangements.

In early November, the union then successfully applied to FWA for a protected ballot order, which would then allow the union to poll its members about industrial action.

However, JJ Richards – with the support of a number of employer groups – appealed the decision to the full bench, saying the proper process set out under the Fair Work Act had not been followed.

The company argued a protected ballot order could only be granted once the parties were actively bargaining and if the employer would not bargain, the union would have to seek a “majority support determination” from FWA to force the company to the table.

But FWA has disagreed with this position and says it does have the power to grant the protected ballot order because the TWU had down it was “genuinely trying to reach an agreement”. As such, it did not need to go through the process of forcing the employer to the bargaining table before a ballot order could be granted.

In an ironic twist, the employer actually won the appeal on a technicality – it was the NSW branch of the TWU that asked to start bargaining with JJ Richards, but the federal branch that applied for the protected ballot order.

But that hasn’t cooled the anger of the ACCI, which says Government wages policy is “fraying at the edges” and claims that FWA is attempting to override the bargaining and agreement making regime that Labor tried to set up under the Fair Work Act.

“We have an Act that does have revamped framework of bargaining and agreement making framework,” the ACCI’s director of workplace policy David Gregory told SmartCompany.

“This decision seems to say that we have all that, but you can bypass it if you can show you are genuinely trying to bargain. Industrial action was seen as a last resort, but this decision suggests it could be a first resort.”

Gregory says that if the FWA is to follow the precedent set in this decision in the future, it will be looking to Federal Workplace Relations Minister Chris Evans to intervene urgently and restore confidence in the bargaining process.

Industrial relations expert Peter Vitale says that while it will take a few more cases before Fair Work Australia’s position on the protected ballot order matter is made clear – he notes one member of the full bench disagreed with his colleagues – the decision does raise concerns about the bargaining process.

“What the legislation tries to set up is a regime. The first step is that if the employer is resistant to bargaining, there is a mechanism for the union to establish it has the membership and support to allow collective bargaining, and then good faith negotiations can start.”

“The whole point of the scheme, with requiring the parties to try and reach some sort of agreement, is that industrial action is the last resort, rather than the first resort.”

If the Government does responds, he believes new legislation is unlikely. Instead, the Government would be more likely to intervene in similar cases as they arise.