The Fair Work Commission has ruled that employers cannot lawfully lock out employees before they take protected industrial action.

The employer had stood down workers after it was told by the AMEIU that its employees would be taking multiple stoppages of 20 minutes in length and a two-hour strike on a future date. The employer had notified everyone that, as a result of this industrial action, they could not “usefully employ any employees”on that day. A copy of this notice was sent to the union, where it was described as an “industrial action notice”. The employer’s enterprise agreement allowed the employer to stand down employees without pay“where an employee cannot be usefully employed because of any strike in the … industry”.

Deputy President Karen Bartel of the Fair Work Commission issued a section 418 order to stop the lockout, saying that the employer’s response constituted unprotected industrial action. She held that the employer’s response did not meet the definition of “employer response action” under section 411 of the Fair Work Act. 

The stand down clause was held to only refer to “a strike conducted by employees other than those who are being stood down”, and so did not apply to these employees who were themselves conducting a strike. It was aimed at workers affected by a strike in the meat industry, but only where those affected by the clause were “otherwise ready, willing and able to work”. Deputy President Bartel also stated that the framing of the action as an “employer response action” was inappropriate. Under the Fair Work Act, such an action could only be in response to industrial action “that is happening”, as opposed to “threatened, impending, probable or even imminent” action. 

Key points for employers:   

  • Employers can only use an “employer response action” to justify the lock out of workers for current industrial actions, not future ones.

A link to the decision can be found here: Australasian Meat Industry Employees Union v JBS Australia Pty Ltd [2014] FWC 2254 (4 April 2014)