A company is in protracted negotiations with its workforce and the union representing its employees in an effort to finalise a new enterprise agreement. The gridlock has had the consequence of employees organising themselves to complete the formal requirements to take protected industrial action. The protection action ballot has been held, and the workforce is overwhelmingly in favour of strike action to force an employer’s hand in negotiations. A quiet echoes through the project site after the ballot results are announced as both employer and workforce take a deep breath before plunging into the fog of protected industrial action.

And with that the first notice of industrial action if served;

On "D" Day at "H" Hour, members of the union notify the company that it will implement a ban in the performance of de-isolation work.

D day arrives and de-isolation crews cease de-isolation work, but also cease undertaking equipment testing, leak testing and air freezing. Now, the company is faced with a wider scope of action than it anticipated. The union maintains that everyone understands de-isolation to also include these tasks, but safety manuals, including Work Method Statements issued by the employer and used by the workforce, are saying that there are distinct tasks.

Where does an employer stand in these situations? Can assistance from the Fair Work Commission be sought, if so, what are the outer limits of the protections afforded to stop what may be unlawful industrial action?

The Full Court of the Federal Court of Australia has recently answered these questions in the decision of Esso Australia Pty Ltd v The Australian Workers’ Union [2016]FCAFC 72 (Esso). In doing so, it made important comments regarding the form of notice of industrial action and what the Commission’s powers are in respect of stopping unlawful action.

A Question of Notice

The Court in Esso confirmed that a notice of proposed industrial action will be interpreted strictly to its terms. The Court held that such notices will not give way to broader applications where arguments of custom and usage, colloquialisms or common understandings form the basis of giving a wider interpretation than the words actually used in the notice of protected industrial action.

Put simply, in the example above, de-isolation means de-isolation and that task only. More general notions of the term which may encompass a range of tasks performed on site will not be accepted when assessing the actions which can be regarded as forming part of the industrial action which was notified and therefore protected by the Fair Work Act 2009 (Cth) (FW Act).

It was held that this was a necessary function of the giving of notice of protected industrial action. Specific notice allows an employer to be aware of the work areas which will go offline and those which will remain online. This allows for effective mitigation and responsive action to be taken and clarifies to the workforce and employers what conduct is immune from legal action and what is not.

What About Equipment Testing, Air Freezing and Leak Testing Bans – Are These Able to be Stopped?

Yes. These actions are able to be taken to the Commission and form the basis of stop industrial action orders pursuant to section 418 of the FW Act. But the Court gave clear guidance on the limits of stop orders and the mechanisms available to the Commission to respond to action whilst it considers and finalises it orders.

Broad Orders Will Not Be Effective

Whilst awaiting a decision as to whether the industrial action complained of should stop, it can be tempting to seek to prevent further action in the interim.

This makes sense, if action is going to be the subject of stop orders, why should the unions and workforce gain a win by exerting pressure in the form of work bans which may be unlawful? It has been confirmed that they should not. But in framing interim orders, as with final orders to stop unlawful industrial action, specific attention needs to be drawn to the industrial action which is to be stopped.

Broad notions of industrial actions by reference to all the possible types of action contained in section 19(1) of the FW Act will not withstand criticism and will be struck down.

Although the Commission does not identify a particular form of industrial action in issuing its orders, it is bound to find first that there is a form of industrial action which is unlawful and the subject of a stop order. In terms of framing orders, therefore, the Commission must be able, in a manner understandable to the parties, be able to specify the action which the section 418 orders attach to.

In the example listed above, interim and final orders that prevented action pursuant to all of the matters in section 19(1) of the FW Act would be invalid. However, orders which stopped the bans on equipment testing, air freezing and leak testing would be valid.

In this sense, the Court is making it clear that the Commission cannot use 1 form of action, the industrial action the subject of the 418 application, as a basis of stopping all industrial action, which may or may not take place. Effectively holding that to do so would be in excess of the powers the FW Act provides.

What Does This Mean for Employers?

The above case provides a few important take away points in relation to notices of industrial action and how to go about seeking to stop unlawful industrial action orders. These are:

  • check the notice issued carefully against the action which is taking place on site. Are the tasks notified, and only those tasks, the subject of industrial action? Or are a wider range of duties being affected which are not contained in the notice
  • when preparing for section 418 applications, an employer is required to provide the Commission with draft orders that the employer is seeking, including any interim orders. In preparing these draft orders, it is important to:< ul="" />
    • have strict regard to the industrial action which is the basis of your application, do not seek to stop all possible types of action as this type of order cannot be made
    • ensure that the action complained of is able to be understood in an identifiable way so that all parties concerned know the limits and outer limits of what the stop order is aimed at. Failure to do this may result in broader orders than necessary, which will be invalid.

Getting these finer details right can now mean the difference between successfully having stop order issues and, if challenged, successfully upheld. The alternative may mean a denial of relief for an employer who may, as a matter of substance, be the subject of unlawful industrial action.