In an important ruling, a Full Bench of Fair Work Australia has confirmed an earlier decision that a trade union can take protected industrial action under the Fair Work Act 2009 (Cth) against an employer that is refusing to bargain, regardless of the level of membership or support the union enjoys at the workplace. Consultant, Professor Andrew Stewart reviews the decision in JJ Richards & Sons Pty Ltd v Transport Workers Union of Australia.

On the view the Bench took, there is no need to show that bargaining has actually commenced, and nor does it matter that the union has not obtained a ‘majority support determination’ effectively compelling the employer to negotiate. All the union need show to get an order for the balloting of its members is that it has made ‘genuine’ attempts to reach agreement over its proposed deal.  

As the Full Bench put it:  

[T]here is nothing in the legislative provisions to suggest that a bargaining representative should not be permitted to organise protected industrial action to persuade an employer to agree to bargain. Nor is there anything to suggest that a union which is genuinely trying to reach an agreement for its members, but cannot get the employer to agree to bargain, should not be able to organise protected action unless it has the support of the majority of employees ...  

Pursuing a majority support determination might be seen as equally effective or even more effective in getting the employer to agree to bargain than attempting to organise protected industrial action. But the fact that the TWU chose one approach rather than the other is not necessarily indicative of a lack of genuineness ...  

In a case in which a bargaining representative legitimately requests an employer to bargain and it is clear the employer does not agree to do so, it is likely that the representative will be found to be genuinely trying to reach an agreement, unless there is material from which it could be concluded that the request to bargain is a sham.  

For the time being at least, that settles the question of how the Act should be interpreted. But it seems quite possible that this matter will be pursued in the higher courts.