J.J Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963 is a recent Full Bench decision of Fair Work Australia (FWA) that provides guidance as to when employees and their representatives may apply for a protected action ballot order under the Fair Work Act 2009.

Following a successful protected action ballot, employees may take industrial action, including strike action, in support of their enterprise bargaining claims.

This case demonstrates that the fact that bargaining may not have commenced is no impediment to granting an application for a ballot order. Protected industrial action may be initiated even in the face of an employer’s clear refusal to bargain with its employees or their union representative, and even though FWA has not been asked to make a Majority Support Determination requiring the employer to bargain because a majority of its employees want to make an enterprise agreement.

Vice President Lawler and Commissioner Bissett observed that the protected action ballot provisions, read in the clear context of the Act as a whole, simply require that FWA be satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer.

It was held that this required an analysis of the subjective intention or purpose of the party seeking a protected action ballot, and that at all times the Transport Workers’ Union of NSW was genuinely trying to reach an agreement with the employer. The employer’s refusal to accede to the Union’s requests to bargain was therefore irrelevant.

The employer’s argument that the Union was required to obtain a Majority Support Determination, before seeking a protected ballot order, was rejected. This was said to be a ‘straight jacket’ on the ‘rational and reasonable strategies for a bargaining representative to adopt’.

Senior Deputy President O’Callaghan was not so quick to dismiss the employer’s argument. In his view, the commencement of bargaining was an essential prerequisite to obtaining a protected action ballot, and obtaining a Majority Support Determination ‘represents the statutory commencement of the bargaining process’. Without such a Determination, FWA could not be satisfied that the party seeking the order was ‘genuinely trying to reach an agreement’.

A ‘letter simply requesting negotiations’ was, in his view, insufficient to satisfy this legislative requirement of genuinely trying to reach an agreement.

In this case it was the Transport Workers’ Union of Australia that actually made the application for the protected action ballot order. Since it had been the Transport Workers’ Union of NSW, its State counterpart, that had sought to bargain with the employer, it was found by all FWA members that the applicant union could not show that it had been genuinely trying to reach an agreement with the employer. The protected action ballot order was refused on that technical point.

It will be interesting to see whether the majority’s remarks on what constitutes ‘genuinely trying to reach an agreement’ will be followed in future decisions of FWA, or whether Senior Deputy President O’Callaghan’s minority view will prevail. Indeed, it may be that the Government will move to change the Act to clarify its views as to the appropriate time at which employees or their bargaining representative may seek orders for a protected action ballot.