Industrial action and disputes. A narrow lane, and how protection is lost.

Industrial action is any of four kinds of conduct (s 19(1)):

1. performing work differently from the customary way, or adopting a practice, so that the work is restricted, limited or delayed;
2. a ban, limitation or restriction on performing work, or on accepting or offering for work;
3. a failure or refusal by employees to attend for work, or to perform any work at all;
4. an employer's lockout, which means preventing employees from performing work under their contracts without terminating them (s 19(3)).

Three things are not industrial action (s 19(2)):

1. employee action the employer authorises or agrees to;
2. employer action the employees authorise or agree to;
3. an employee's action "based on a reasonable concern of the employee about an imminent risk to his or her health or safety", where the employee "did not unreasonably fail to comply with a direction" to do other available work that was safe and appropriate.

On the safety exclusion, the Federal Court has said the concern "must still be objectively reasonable. It will not be reasonable merely because it was raised by a union official", and that "imminent" means "likely to occur at any moment" (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092 at [112]-[114], on identical words in a former building industry Act). The test turns on each employee's own concern.

1. A stoppage to attend a political or community rally can be industrial action. The Full Court found "no justification for the view that it is necessary to add some further 'industrial qualification'" to s 19(1)(c), and said the note to s 19 about the Age case "is not part of the Act" (Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228 at [31], [59]).
2. An employee who stays away knowing others are doing so engages in the collective failure to attend. Motive, and how the time is spent, are irrelevant (Adams at [92]).
3. A genuine absence for sickness under the agreement's personal leave clause is not industrial action, but "[m]erely entering the word 'sick' on a timesheet" did not show that the clause had been complied with (Adams at [160], [163]).
4. Only employees (or an employer, for a lockout) engage in industrial action. "[I]t is only employee action (or, in the case of a lockout, employer action), which falls within the scope of the definition" (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [133]). A union organises it, and the Act regulates organising separately.

Industrial action is protected only if it is one of three kinds (s 408):

1. employee claim action, which must be authorised by a protected action ballot, must support claims only about permitted matters (or reasonably believed to be), must not support claims for unlawful terms, and must not be part of pattern bargaining (s 409(1)-(4));
2. employee response action, in response to the employer's lockout, which needs no ballot (s 410);
3. employer response action, which is a lockout in response to employees' action (s 411).

All three kinds must also meet the common requirements in s 413:

1. the proposed agreement is not a greenfields agreement or a cooperative workplace agreement (s 413(2));
2. the bargaining representative is genuinely trying to reach an agreement (s 413(3));
3. the notice requirements of s 414 have been met (s 413(4));
4. the union (and, for employee action, the employees) "must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement" (s 413(5));
5. the action does not breach the bar on action during an agreement's nominal term (s 413(6));
6. no suspension or termination order, Ministerial declaration or intractable bargaining declaration is in operation for the agreement (s 413(7)).

The High Court majority held that s 413(5) "mandates that there have been no past contraventions of any such order", whether or not the order is still in operation (Esso Australia Pty Ltd v The Australian Workers' Union [2017] HCA 54 at [36], [52]). Losing protection "is not a punishment"; the purpose is that those "who have shown that they cannot be trusted to comply with orders relating to the agreement ... are not to be trusted with the immunity" (at [53]). Gageler J dissented on this point.

So a single contravention of a stop order, an interim order or a bargaining order during a bargaining round removes protection from every later action for that agreement. The case is retold in the case studies for this page.

"No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action" unless the action has involved, or is likely to involve, any of the following (s 415(1)):

1. personal injury;
2. wilful or reckless destruction of, or damage to, property;
3. the unlawful taking, keeping or use of property.

A defamation action is not barred (s 415(2)).

A union or person who organises or takes action in good faith on a declared ballot result keeps the same protection under State and Territory law if it later turns out the ballot did not authorise the action, or the ballot order is quashed or varied (s 460).

Whether s 415 also bars actions under Commonwealth law, such as the CCA, is an open question. Section 415 speaks of a law "in force in a State or Territory". A note after s 45DD of the CCA says that s 415 "limits the right to bring actions under this Act in respect of industrial action that is protected action for the purposes of that section". No decision settles the point.

Protected industrial action is also excluded from the coercion provision in s 343(1) (s 343(2)(a)). Section 348 (coercion to engage in industrial activity) has no such exclusion, and the High Court found it "unnecessary to decide" whether protected action can be coercion under s 348 (Esso at [61]).

From the day an enterprise agreement is approved until its nominal expiry date has passed, a covered employer, employee or union, or an officer of a covered union acting in that capacity, "must not organise or engage in industrial action ... whether or not the industrial action relates to a matter dealt with in the agreement" (s 417(1)-(2)).

1. It is a civil remedy provision, with a maximum of 60 penalty units for an individual and five times that for a body corporate (s 539(2) item 14; s 546(2)). A registered union is a body corporate (RO Act s 27).
2. The Federal Court or the Federal Circuit and Family Court (Division 2) may grant an injunction (s 417(3)).
3. The section is contravened only if action actually occurs: "conduct which attempts, but fails, to organise the taking of industrial action" does not contravene it (BHP Coal at [145]).

1. Check that bargaining has started. No application may be made "unless there has been a notification time in relation to the proposed enterprise agreement" (s 437(2A)). The note says protected action "cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute)". Notification time is defined in s 173(2) (see Bargaining and enterprise agreements).
2. Check the date. If an enterprise agreement covers the employees, the application must not be made earlier than 30 days before its nominal expiry date (s 438(1)). The action itself must still wait until that date has passed (s 417; s 413(6)).
3. Prepare the application. It must name the group or groups of employees to be balloted, the question or questions to be put (including "the nature of the proposed industrial action"), and the proposed ballot agent (s 437(3)). A bargaining representative of an employee who will be covered may apply, alone or jointly (s 437(1)). The application is made on the Commission's form F34.
4. Know who votes. A group is taken to include only employees who will be covered and who are represented by an applicant, or who represent themselves but are members of an applicant union (s 437(5); s 453). A union cannot ballot employees it does not represent.
5. Serve it. Within 24 hours after applying, give a copy to the employer and to the proposed ballot agent (s 440). The Commission must not decide the application until satisfied that each applicant has done so (s 441(2)).
6. The hearing. The Commission must, as far as practicable, decide the application within 2 working days (s 441(1)). It must make the order if it is satisfied that each applicant "has been, and is, genuinely trying to reach an agreement with the employer" (s 443(1)), and must not make it otherwise (s 443(2)).
7. The order. It names the applicants, the groups, the questions, the ballot agent and the date voting closes (s 443(3)). After making it, the Commission must order all bargaining representatives to a private conference for mediation or conciliation, within a period ending on or before the closing date (s 448A).

The test is a question of fact. It "involves a finding of fact applied by reference to the circumstances of the particular negotiations", and "[i]t is not useful to formulate any alternative test" (Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 at [31]).

1. It is not the same as good faith bargaining: "it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement" (Esso Australia Pty Ltd v Australian Manufacturing Workers' Union [2015] FWCFB 210 at [18]).
2. Pursuing a claim that is not about a permitted matter is relevant but not decisive. There is "no legislative warrant for the adoption of a decision rule" that such a claim means the applicant is not genuinely trying (at [57]-[59]).
3. Separately, the action itself is protected only if the claims it supports are "only about, or are reasonably believed to only be about, permitted matters", and are not claims for unlawful terms (s 409(1)(a), (3)).
4. Seeking common terms with two or more employers is pattern bargaining unless the union is genuinely trying to reach agreement with the particular employer, and action by a union engaged in pattern bargaining is not protected (s 409(4); s 412).

All that s 437 requires "is that the questions should describe the industrial action in such a way that employees are capable of responding to them"; how specific the action must be for the employer's purposes is a matter for the s 414 notice (Mornington Peninsula Shire Council [2011] FWAFB 4809 at [40]). Two rules in the Act shape the questions:

1. action later taken must be "the subject of the ballot" (s 459(1)(a));
2. if a question authorises action "of a particular duration" and does not say that consecutive periods may be taken, only the first period of a series is authorised (s 459(2)).

1. The Commission must appoint the agent named in the application unless that person is not an eligible protected action ballot agent, or exceptional circumstances justify another agent (s 444(1B)-(1C)). A person who is not an eligible agent may be appointed only if exceptional circumstances justify it, the person is fit and proper, and any prescribed requirements are met (s 444(1D)).
2. Costs: the Commonwealth pays for a ballot run by the Australian Electoral Commission (s 464(2)); the applicant pays for a ballot run by any other agent, whether or not it is completed (s 465(2)).
3. The closing date must "enable the protected action ballot to be conducted as expeditiously as practicable" (s 443(3A)). That is not "as quickly as possible" or the date the applicant asks for, and the Commission may have regard to the s 448A conference and the 2-working-day timetable when fixing it (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (NSW) Pty. Ltd. [2023] FWCFB 134 at [57]-[58], [66], [71]).
4. If a union that applied for the order contravenes the s 448A conference order, later employee claim action is not protected (s 409(6A)). An employer that contravenes it loses protection for its response action (s 411(3)).

The order may require more than 3 working days' notice (or 120 hours), up to 7 working days, only if the Commission is satisfied "that there are exceptional circumstances justifying" it (s 443(5)).

1. Voting is secret. The agent declares the result in writing and tells each applicant, the employer and the Commission, which publishes it (s 457).
2. Interfering with the ballot is a civil remedy provision (s 462(1)). It includes intimidation, offering an advantage to induce a vote, advising a person entitled to vote not to vote, and asking to see a completed ballot paper. It applies to everyone, union officials and managers alike.
3. A technical breach of the ballot provisions does not invalidate the order, the ballot or the result (s 461).

Industrial action by employees is authorised by the ballot only if all four conditions in s 459(1) are met:

1. the action was the subject of the ballot;
2. at least 50% of the employees on the roll of voters voted;
3. more than 50% of the valid votes approved the action;
4. the action commences during the 30-day period starting on the date the result is declared, or during an extended period.

1. Diary the date. The 30 days start on the date the result is declared, not the date of the order (s 459(1)(d)). The window is for the action to commence.
2. Extension. On application by an applicant for the order, the Commission may extend the period by up to 30 days, if it has not been extended before (s 459(3)). The power may be used after the first 30 days have expired (Appeal by EnergyAustralia Yallourn Pty Ltd [2013] FWCFB 2022 at [27]), and the Full Court majority found no error in that (EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8 at [9], [21]; Dowsett J dissented). The extension of up to 30 days is calculated from the day the result was declared (at [19]).
3. No cover for a gap. An extension order does not "retrospectively confer protection on industrial action that was unprotected at the time it was taken" ([2013] FWCFB 2022 at [26]; [2014] FCAFC 8 at [19]). Action that commences after the window closes and before an extension order is made is not authorised.

1. Timing. Before employees take employee claim action, a bargaining representative must give the employer written notice of the action (s 414(1)). The notice must not be given until after the ballot result is declared (s 414(3)).
2. Length. At least 3 working days; 120 hours for a multi-enterprise agreement; or the longer period the ballot order specifies (s 414(2)).
3. Content. The notice "must specify the nature of the action and the day on which it will start" (s 414(6)).
4. Response action. Employee response action needs no ballot, but it does need written notice by a bargaining representative before it is taken (s 414(4)).
5. A condition of protection. "[T]he provision of the required notice is a condition precedent for the taking of the industrial action", and if the notice is not given the action "will not be protected" (Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FWCFB 5530 at [68]).

1. The purpose of the notice "is to give the employer the opportunity to respond to the action by making relevant preparations". Whether a notice is adequate "may depend on the nature of the employer's operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action" (Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 1698 at [12]).
2. A notice of "indefinite stoppages" is not incapable of complying; it depends on the context and the surrounding circumstances (at [14]). In that case a notice of "an unlimited number of indefinite stoppages" by members in all States and Territories did not comply (at [14]-[17]).

Neither s 414(1) nor s 414(4) can "be read to mean that once the relevant notice is given, the industrial action must be taken" (Thiess at [69]). Because s 414 puts no obligation on an individual employee to take the notified action, the Act needs no machinery for amending or withdrawing a notice (at [70]). Employees on an incoming shift who were "ready, willing and able" to work were not taking industrial action, and were entitled to be paid (at [78], [80]-[81]).

1. Termination for the wider economy. In the 2011 Qantas dispute the Full Bench treated the effect on the wider aviation and tourism industries as the primary consideration under s 424(1), and chose termination over suspension because suspension "leaves open the possibility there may be a further lock out" (Minister for Tertiary Education, Skills, Jobs and Workplace Relations [2011] FWAFB 7444 at [15]-[16]).
2. What an order may reach. A 2010 Full Bench read s 424 as applying to "protected industrial action which was authorised by the ballot, and not to the particular industrial action which is being taken" (National Tertiary Education Industry Union v University of South Australia [2010] FWAFB 1014 at [11]-[12]). In 2012 the Full Court held that separate consideration must be given to each notified action, and that the pilots' union's action should not have been terminated when only the airline's lockout met the s 424 test (AIPA at [67]-[70], Lander J; [128]-[129], Buchanan J; [179]-[180], Perram J).
3. An order aimed at the other side still ends protection. The Full Court refused relief in that case because even an order confined to the lockout would have been a Division 6 order "in relation to the agreement", so the union's action would still have lost protection under s 413(7), and arbitration under s 266 would still have followed (AIPA at [130]-[131], Buchanan J; [182], Perram J).
4. Harm to third parties is a high bar. "Significant harm" under s 426 means harm "above and beyond the sort of loss, inconvenience or delay that is commonly a consequence of industrial action", so that an order "will only be available ... in very rare cases"; "[s]ubstantial harm to third parties is a common consequence of effective industrial action" (Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd [2010] FWAFB 6021 at [44]).

1. The order states the suspension period (s 427(2)). It may be extended once (s 428).
2. When it ends, ballot-authorised action that had not been taken (or had not ended) may resume without a further ballot, under the conditions in s 429.
3. A fresh written notice of at least 3 working days, or a longer period of up to 7 working days set by the Commission, must be given before the action resumes (s 430; s 427(3); s 428(2)(b)).

1. A termination order under s 423 or s 424, or a Ministerial declaration under s 431, starts a post-industrial action negotiating period of 21 days (s 266(2)-(3)).
2. The Commission must extend it to 42 days if all bargaining representatives jointly apply within the first 21 days and have not settled all the matters at issue (s 266(4)).
3. If the matters are not all settled by the end of the period, the Commission must make an industrial action related workplace determination as quickly as possible (s 266(1)), constituted by a Full Bench.

The Minister may terminate protected action by written declaration on the same safety and economy grounds as s 424, without a Commission hearing (s 431). It operates from the day it is made (s 431(2)).

If it appears to the Commission that industrial action that is not, or would not be, protected is happening, is threatened, impending or probable, or is being organised, "the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be)" for a stop period (s 418(1)).

1. It may act on its own initiative, or on application by a person affected (directly or indirectly) or their organisation (s 418(2)).
2. Where the circumstances appear, "the Commission has no discretion at all as to whether to make an order", and the order "must be an order that is designed to be effective" (Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 at [16], on the predecessor provision).
3. "[T]he relevant jurisdictional fact is the Commission member's perception" (Appeal by Maritime Union of Australia [2013] FWCFB 7736 at [7]). "[T]he coordination and planning of industrial action would constitute organisation of it" (at [34]).

1. A union can be ordered not to organise industrial action, but "it is difficult to see how under s.418(1) it can itself be ordered to stop and not engage in industrial action which is engaged in by employees". It may be ordered to take a specifically identified step if that is essential or necessary to make the order effective (MUA at [44]). A term requiring employees to be available for and perform work as required was "clearly beyond power" (at [48]).
2. The Commission may not simply order that no unprotected industrial action of any kind occur for a period (Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72 at [30]), and s 418(3), which allows an order not to specify the particular action, "does not expand the scope of an order" (at [378]). The High Court later allowed an appeal from that decision on the separate s 413(5) point.
3. A person need not comply with a s 418 order, or a related interim order, if the action is or would be protected (s 421(2)).
4. Where ballot-authorised action has not all been taken, the order may say whether it may be taken after the stop period without another ballot (s 418(4)).

1. The Commission must decide a s 418 application within 2 days as far as practicable. If it cannot, it must make an interim order within that time, unless that would be contrary to the public interest (s 420(1)-(3)).
2. "The obligation to make an interim order exists regardless of the strength or weakness of the case", but "[e]xpedition does not trump procedural fairness" (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [132]-[133]).

A contravention of a s 418, s 419 or s 420 order has several separate consequences:

1. it is a civil remedy provision, with a maximum of 60 penalty units for an individual and five times that for a body corporate, on application by a person affected or an inspector (s 421(1); s 539(2) item 15; s 546(2)), and s 545 orders such as compensation are not available for it (s 421(4));
2. the Federal Court or the Federal Circuit and Family Court (Division 2) may grant an injunction (s 421(3)), and breaching an injunction is contempt of court;
3. it is a criminal offence, punishable by imprisonment for up to 12 months, because these orders are not among the orders excluded from s 675 (s 675(1)-(2));
4. a person "involved in" a contravention, for example by aiding, inducing or being knowingly concerned in it, is taken to have contravened the provision (s 550);
5. conduct by an officer, employee or agent of a body corporate within their actual or apparent authority is taken to be conduct of the body (s 793);
6. the union cannot take protected action for that agreement afterwards (s 413(5); Esso [2017] HCA 54).

A person must not organise or take, or threaten to organise or take, action against another person with intent to coerce them to exercise or not exercise a workplace right (s 343(1)), or to engage in industrial activity (s 348). The High Court held that a contravention is organising, taking or threatening action "with intent to negate the other person's choice", and that it is "unnecessary" that the person know or intend that the action be unlawful (Esso [2017] HCA 54 at [2]).

1. Civil penalties are imposed mainly for deterrence. Nothing in s 546 "requires that the maximum penalty be reserved for the most serious examples of misconduct", and past contraventions may justify a penalty at or near the maximum (Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [9]-[10]).
2. The High Court also recognised that a contravention may be a one-off result of inadvertence, or occur "through ignorance of the law on the part of a union official", and that in such cases "a modest penalty, if any, may reasonably be thought to be sufficient" (at [46]).
3. A court may order that an official pay a penalty personally and not be indemnified by the union (Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2018] HCA 3 at [116], [120]; Gageler J dissented on the power). An order directed at the union itself not to indemnify is not available, because s 546(1) "is directed only to a contravener" (at [39], Kiefel CJ).

If an employee engages in protected industrial action on a day, the employer "must not make a payment to an employee in relation to the total duration of the industrial action on that day" (s 470(1)).

1. The target is strike pay. "[T]he mischief at which s 470(1) is directed is the payment of strike pay", and there is "no suggestion that the purpose of s 470(1) is to suspend the entirety of the employer's obligations" (Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36 at [59]).
2. An overtime ban counts only if the employer requested or required the overtime, the employee refused, and the refusal breached the employee's award, agreement or contract obligations (s 470(4)).

A partial work ban is any industrial action other than a refusal to attend, a refusal to do any work at all, or an overtime ban (s 470(3)). Section 470 does not apply to it (s 471 applies instead). The employer has three positions:

1. give written notice reducing pay by a stated proportion (s 471(1)-(2));
2. give written notice that the employee will not be paid and that it refuses to accept any work until the employee performs all normal duties (s 471(4));
3. give neither notice, in which case "the employee's payments for the day are not to be reduced because of the ban" (s 471(8)).

The regulations prescribe how the proportion is worked out and what the notice must contain (s 471(3), (6)-(7); Fair Work Regulations regs 3.21-3.24).

If the employer gives a non-payment notice and employees then stay away or refuse all work, and the partial ban was employee claim action, the stay-away is employee claim action "even if it does not satisfy subsections 409(2) and 413(4)", that is, the ballot and notice requirements (s 471(4A)). The other requirements for protection still apply.

The employee or their bargaining representative may ask the Commission to vary the proportion in a reduction notice (s 472). The Commission must consider whether the proportion was reasonable having regard to the nature and extent of the ban, and fairness between the parties (s 472(3)). A single member said a time-based calculation "might not be reasonable" where the banned work has greater impact or value, and described a properly issued notice as "altering legally enforceable obligations and entitlements" (Transport Workers' Union of Australia v Transit (NSW) Services Pty Ltd [2021] FWC 6561 at [41], [52]).

If an employee engages in unprotected industrial action on a day, the employer must not pay for the total duration of the action that day if it is at least 4 hours, or otherwise for 4 hours of that day (s 474(1)). A shift that crosses midnight is treated as one day, and overtime is not a separate shift (s 474(3)-(4)).

1. An employee must not accept, or ask for, a payment that s 474 prohibits (s 475(1)).
2. "An employee organisation, or an officer or member of an employee organisation, must not ask an employer to make a payment to an employee if the employer would contravene section 474 by making the payment" (s 475(2)). The equivalent rule for protected action is s 473.
3. In one case a union official's request that an employer pay a day shift for a period of unprotected action was admitted to contravene s 475(2), and on appeal the union was ordered to pay a $40,000 penalty for that contravention (Australian Building and Construction Commissioner v Australian Workers' Union [2022] FCAFC 143, orders 4-6). The case is retold in the case studies.
4. The payment rules do not affect the employer's other responses that do not involve payments (s 476).

An employer may stand down an employee "during a period in which the employee cannot usefully be employed because of" (s 524(1)):

1. industrial action, other than industrial action organised or engaged in by the employer;
2. a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for it;
3. a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

If an enterprise agreement or contract applies and provides for stand down in that circumstance, s 524(1) does not apply, and the agreement or contract governs, including any consultation or notice it requires (s 524(2) and notes).

1. Useful employment comes first. "If the employee can be usefully employed, the stand down will not be authorised by s 524(1) and no further inquiry as to causation is needed" (The Peninsula School t/a Peninsula Grammar School v Independent Education Union of Australia [2021] FWCFB 844 at [33]).
2. "On its ordinary meaning, 'stoppage of work' simply means a cessation of working activity" (at [37]).
3. An employee is not stood down while on paid or unpaid leave the employer has authorised (s 525). The Full Court majority held that "an employer is not required to pay for leave during a stand down unless the exercise of the entitlement is authorised" (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCAFC 205 at [85]; Bromberg J dissented).

The Commission may deal with a dispute about the operation of the stand-down Part, including by arbitration (s 526(1)-(2)), and must take into account fairness between the parties (s 526(4)). The application may be made by any of:

1. an employee who has been, or is going to be, stood down (or purportedly stood down);
2. an employee who asked for leave to avoid a stand down and had it authorised;
3. "an employee organisation that is entitled to represent the industrial interests of" such an employee;
4. an inspector.

Contravening a term of the Commission's order is a civil remedy provision (s 527). Stand-down orders are excluded from the s 675 offence (s 675(2)(i)).

A person must not, "in concert with a second person", engage in conduct that hinders or prevents a third person supplying goods or services to, or acquiring them from, a fourth person "who is not an employer of the first person or the second person", where the conduct "is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person" (CCA s 45D(1)).

1. The CCA does not define "in concert". What it requires has not been settled by the High Court, and no decision settles its full meaning.
2. The purpose need only be one of the purposes (s 45D(2)). "Nor must it be a substantial purpose – it only needs to be a purpose" (Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191 at [57]).
3. If two or more members or officers of the same union engage in conduct in concert, the union is taken to have engaged in it, for their purposes, "unless the organisation proves otherwise" (CCA s 45DC(1)). Loss is taken to be caused by the union (s 45DC(3)). If the union is a body corporate, no s 82 damages claim lies against its members or officers for that conduct (s 45DC(4)).

A person does not contravene s 45D(1), 45DA(1) or 45DB(1) "if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person" (CCA s 45DD(1)). Section 45DD(2) applies a similar rule to employees of one employer acting with their union. The contrast matters: s 45D catches a purpose that is one among several, while the exemption needs the employment purpose to be dominant.

The CCA prohibits a business that has been supplying or acquiring goods or services from making a contract, arrangement or understanding with a union containing a provision meant to stop or hinder that supply or acquisition, and prohibits giving effect to one (CCA s 45E; s 45EA). The High Court held that "[a] person who succumbs to a threat of industrial action by doing what is demanded under sanction of the threat, without express or tacit communication of a commitment to do so, does not arrive at an understanding with the person who makes the threat" (Australian Competition and Consumer Commission v J Hutchinson Pty Ltd [2025] HCA 10 at [4]). The case is retold in the case studies.

1. Only the Australian Competition and Consumer Commission may bring proceedings for pecuniary penalties (CCA s 77(1)), within 6 years (s 77(2)). The maximum for a body corporate is $750,000 for each act or omission under ss 45D, 45DB, 45E or 45EA (s 76(1A)).
2. The Commission "or any other person" may apply for an injunction (s 80).
3. A person who suffers loss or damage may recover it (s 82(1)), within 6 years (s 82(2)).
4. In the Boral concrete ban case the union was ordered to pay an aggregate penalty of $1 million for two contraventions of s 45D(1) (Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 4) [2018] FCA 684 at [3], [78]).

A registered union is a body corporate that can sue and be sued in its registered name (RO Act s 27). The High Court has long treated a registered federation as "a corporation, capable of being sued in tort" (Williams v Hursey [1959] HCA 51, Fullagar J).

The claims usually pleaded against unions are inducing breach of contract, conspiracy and intimidation. For protected action, s 415 bars actions under any law in force in a State or Territory, with the exceptions listed in section 1. Two points from the text and the cases:

1. The immunity attaches only to protected industrial action. Under the predecessor provision the Full Court held that obstructive picketing did not constitute industrial action, "and so could never have constituted 'protected action'" (Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 at [73]).
2. Whether s 415 reaches claims under Commonwealth law, including the CCA, is open, as set out in section 1. No decision settles it.

1. Every modern award must include a term providing a procedure for settling disputes about matters arising under the award and in relation to the National Employment Standards (s 146).
2. An enterprise agreement cannot be approved unless it has a term that requires or allows the Commission, or another independent person, to settle disputes about matters arising under the agreement and in relation to the National Employment Standards, and that "allows for the representation of employees covered by the agreement for the purposes of that procedure" (s 186(6)).
3. Section 739 also reaches dispute terms in contracts and other written agreements, but only for disputes about the National Employment Standards or a safety net contractual entitlement (s 738(c)).

The Commission "may deal with a dispute only on application by a party to the dispute (s.739(6)), is prohibited from exercising any powers limited by the disputes resolution procedure (s.739(3)), may arbitrate only if the agreed disputes resolution procedure permits it to do so (s.739(4)), and must not make a decision that is inconsistent with the FW Act, the enterprise agreement and any other applicable fair work instrument (s.739(5))" (Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619 at [34]; s 739).

1. Read the clause. The Commission has no general power to deal with disputes: "The Act does not confer a plenary power on the Commission to deal with disputes generally", and whether a term allows it to deal with a dispute depends on the construction of the term (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Cockburn Cement Ltd [2025] FWCFB 201 at [28]-[29]; s 595(1)).
2. Take the workplace steps the clause sets. "[T]he parties to an enterprise agreement are free to impose limitations on the role afforded to the body that is to settle disputes", and where those limits are not observed the Commission has no discretion to deal with the dispute unless the agreement gives it one (Australian Workers' Union v MC Labour Services Pty Ltd [2017] FWCFB 5032 at [39]).
3. Tie the dispute to a clause. A dispute must arise under the instrument. Where resolving it would have meant deciding whether a pre-existing contractual arrangement bound the employer, it did not, and "[t]he simple reference to long service leave in the Agreement" was not enough (Cockburn Cement at [39]).
4. Apply to the Commission. The application is made by a party to the dispute (s 739(6)), on the Commission's form F10.
5. Conciliation, then arbitration if the clause allows it. The Commission may mediate, conciliate, recommend or give an opinion (s 595(2)). It may arbitrate only if, in accordance with the term, the parties have agreed that it may (s 739(4); s 595(3)).

1. A covered union. The Full Court held that reading a dispute clause so that it stopped the unions covered by the agreement from initiating a dispute "would defeat the purpose" that s 186(6) and s 341(1) required the clause to serve, and that, read that way, the clause "would not comply with s 186(6)" (Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146 at [66]-[67]).
2. A union not covered by the agreement. The Commission's 2025 model dispute term, as the Full Bench described it, lets an organisation be a party where it "has a member who it is entitled to represent and who is an employee referred to in (a)" (Model terms for enterprise agreements and copied State instruments [2025] FWCFB 39 at [136]). Whether s 186(6) requires a term to admit a union that is not covered was expressly left undecided: "It is unnecessary for us to resolve the question" (at [135]). For other clauses, no decision settles whether a union that is not covered may be a party in its own right.
3. In every case, the s 186(6)(b) limb requires that the clause allow employees to be represented.

A dispute brought to the Commission while the employment continued is not defeated when the employment later ends: the Commission's powers "are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end" (Jonathan Mitchell v University of Tasmania [2022] FWCFB 165 at [29]). In that case raising the dispute under the clause while employed was enough, because the clause then entitled the employee to go to the Commission; the Full Bench distinguished a case in which the employee had not taken the clause's initial steps before the employment ended (at [30]). The case is retold in the case studies.

1. Arbitration under an agreement is private arbitration. An award in private arbitration "is not binding of its own force" (Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16 at [31]), and arbitration by the Commission under an enterprise agreement term "is a private arbitration, based upon the consent of the parties" (Australian Manufacturing Workers' Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [35]).
2. Whether an employer contravened a term of the agreement under s 50, and what penalty should follow, are "the exclusive preserve of the courts" (Airservices Australia v Civil Air Operations Officers' Association of Australia [2022] FCAFC 172 at [94], [96]).
3. What happens if a party does not comply with an arbitrated outcome is not settled by a court. Section 675(2) lists the Commission orders that are not enforced by the s 675 offence, and an order made in a s 739 arbitration is not on that list. No court decision settles whether non-compliance is an offence under s 675, or a contravention of the agreement that can be pursued under s 50.

The Commission may make an intractable bargaining declaration only if it is satisfied of three things, and only after the end of the minimum bargaining period (s 235(1)-(2)):

1. it "has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC's processes to deal with the dispute";
2. there is no reasonable prospect of agreement being reached if it does not make the declaration;
3. the declaration is reasonable in all the circumstances, taking into account the views of all the bargaining representatives.

The minimum bargaining period generally ends 9 months after the later of the nominal expiry date of any existing agreement and the day bargaining started (s 235(5)-(6)). A declaration ends protected action for the agreement (s 413(7)(c)).

Whether the s 240 dispute must be the same dispute that is said to make bargaining intractable is an open question. The Full Bench has twice left it undecided (Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd [2024] FWCFB 127 at [94], noting the same course in an earlier Full Bench), and no decision settles it.

1. The resolution of the issue "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose" (Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2]).
2. "Industrial instruments are not always drafted carefully by lawyers or professional drafters", so the literal words "might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests" (Ridd v James Cook University [2021] HCA 32 at [17]).
3. Framers of industrial instruments were "likely of a practical bent of mind" (Kucks v CSR Ltd [1996] IRCA 166, Madgwick J).
4. The limit: "A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award" (Kucks).

The Commission and the Federal Court put this differently:

1. the Commission's Full Bench said that evidence of surrounding circumstances may be used to decide whether there is an ambiguity and to resolve one, but "will not be admitted to contradict the plain language of the agreement", and that "[e]nterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies" (Australian Manufacturing Workers' Union v Berri Pty Ltd [2017] FWCFB 3005 at [114]);
2. the Full Federal Court said that "[r]esort to extrinsic materials to aid the identification of context and purpose is permissible even if textual ambiguity is not apparent", though such materials cannot displace the meaning of the text (Noorton Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] FCAFC 120 at [52]).

Documents commonly relevant to context include the agreement as approved, what employees were told about it before the vote, the predecessor agreement and the award, and how the work is actually done.