A Full Federal Court has found that an employer’s lockout was a legitimate response to “minor” industrial action taken by certain employees.
There was an ongoing dispute between three unions and an employer over proposed enterprise agreements. The only protected industrial action taken by members of one of the unions (the pilots’ union) was in relation to the colour of the ties they wore and announcements they made to customers on flights. Members of the other unions took more damaging action. The employer locked out members of all three unions after giving notice. The Minister successfully applied to Fair Work Australia (FWA) for an order that all industrial action immediately cease. The pilots’ union appealed on the basis that the lockout was an “overreaction” and could not have been in response to its “minor” action and was, therefore, not protected industrial action which could be terminated by FWA.
The Full Federal Court dismissed the appeal and found that employer response action does not have to be reasonable, proportionate, rational or taken solely, predominantly or substantially in response to employee action. All that is required is that it is a response to that action.
The Full Court acknowledged that the lockout was “serious” and “opportunistic”, but was:
- the only legitimate industrial action the employer could have taken;
- taken in response to the pilots’ action; and
- part of a wider strategy to resolve all of the disputes with the unions.
Australian and International Pilots Association v Fair Work Australia  FCAFC 65