A Full Bench of FWA has confirmed a decision at first instance which granted a protected action ballot order before the commencement of bargaining when the employer had refused to bargain.

This had been the second application by the union for a protected action ballot order enabling employees to vote on taking industrial action (the first application had been rejected due to a technicality).  At first instance, FWA found the union had been “genuinely trying to reach an agreement” and held that majority support determinations, good faith bargaining orders or scope orders are not prerequisites to a protected action ballot order.

On appeal, a Full Bench majority upheld this decision.  The tribunal held the FW Act intended that protected action ballot orders be available when employers refuse to bargain.  The tribunal noted that a union has a right to attempt to bring an employer to the bargaining table by resorting to protected industrial action.  The fact that the union chose this approach rather than pursing a majority support determination did not mean it was not genuinely trying to reach agreement.

J.J. Richards & Sons Pty Ltd and another v Transport Workers’ Union of Australia [2011] FWAFB 3377