The Full Bench of the Fair Work Commission (FWC) has determined that it would not suspend protected industrial action at the request of the employer, where the employer is not willing to and does not negotiate in good faith during protected industrial action.
- Employers should ensure that they are negotiating in good faith during protected industrial action in order to be able to obtain an order to suspend the protected industrial action.
- Suspending protected industrial action may be beneficial to bargaining representatives if neither party is willing to abandon its position.
Members of the Australian Manufacturing Workers’ Union (AMWU) took protected industrial action at the Preston factory of Paper Australia Pty Ltd (Paper Australia) during the negotiations for a new enterprise agreement. Paper Australia sought a ‘cooling off period’, which means to suspend the protected industrial action. At first instance, Commissioner McKinnon suspended the action for 4 weeks, as the Commissioner considered that the cooling-off period would be beneficial to the AMWU in assisting to resolve the matters in issue and that the suspension was not inconsistent with the objects of the Fair Work Act 2009 (Cth) (FWA). This decision was appealed by the AMWU.
The Full Bench of the FWC granted the appeal. The Full Bench determined that Commissioner McKinnon made errors of fact in considering whether a suspension would be beneficial to the bargaining representatives in assisting the resolution of the matters in issue. During the first proceedings, the AMWU stated that it felt it would potentially lose its bargaining power, which had been gained under protected industrial action, if the action was suspended. Commissioner McKinnon also found that neither party would bargain while the protected industrial action continued. The Full Bench held that this finding was erroneous. Although Paper Australia refused to bargain with the AMWU during the protected industrial action, as recently as 21 January 2018, the AMWU had indicated to Paper Australia that it remained willing to bargain while its members were taking protected industrial action.
The Full Bench further determined that the Commissioner failed to take into account whether suspending the protected industrial action would be inconsistent with the objects of the FWA. In the first proceedings, the AMWU argued that Paper Australia’s conduct in refusing to negotiate was in breach of good faith bargaining requirements. The FWA expressly requires bargaining representatives to attend and participate in meetings at reasonable times. By suspending protected industrial action at Paper Australia’s request in order to encourage the parties to resume bargaining, when it was Paper Australia’s own decision to stop bargaining in the first place because AMWU was engaging in protected industrial action, Commissioner McKinnon was ‘rewarding’ non-compliance with the FWA.