Common requirements

See Fair Work Act s.413

Protected industrial action must meet the common requirements set out in the Fair Work Act.

The common requirements for industrial action to be protected industrial action for a proposed enterprise agreement are:

• that the proposed agreement is not a greenfields agreement or multi-enterprise agreement
• that the parties are genuinely trying to reach an agreement
• that the parties have met any notice requirements set out in the Fair Work Act
• that the parties have complied with orders made relating to industrial action which relates to the proposed agreement or bargaining
• that no industrial action can commence before the enterprise agreement being replaced has passed its nominal expiry date, and
• that there are no current suspension or termination orders, or serious breach declarations, in relation to the agreement.

These requirements are set out in detail below.

The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi-enterprise agreement.

A greenfields agreement is an enterprise agreement relating to a genuine new enterprise (including a new business, activity, project or undertaking) which is made at a time when the employer or employers have not yet employed any of the persons who will be necessary for the normal conduct of the enterprise and who will be covered by the agreement.

A multi-enterprise agreement is an enterprise agreement made between two or more employers (that are not engaged in a joint venture or common enterprise and are not related bodies corporate) and employees.

The persons organising or engaging in industrial action, including where there are bargaining representatives for a proposed enterprise agreement, must be genuinely trying to reach agreement. There are no rigid rules regarding the the required point of negotiation that must be reached before this requirement is met. All the relevant circumstances must be assessed to establish whether this test has been met.[1]

The existence of claims for non-permitted matters does not support a finding that an organisation was not genuinely trying to reach an agreement.[2]

There is no reason why questions of scope cannot be included in bargaining in the context of a single interest employer authorisation and the mere fact that a bargaining representative puts scope in issue does not mean the bargaining representative is not genuinely trying to reach an agreement.[3]

The notice requirements set out in the Fair Work Act must have been met in relation to the industrial action.

The notice requirements for each of the three types of protected industrial action differ and are set out in detail in Part 3.3.

Section 413 (5) is concerned with contraventions of orders that have been made during the course of bargaining for the agreement. This can include a contravention of an order that subsequently has ceased to apply.[4] The section provides that bargaining representatives and employees organising or engaging in industrial action must not have contravened any orders that apply to them and that relate to the agreement, a matter that arose during bargaining for the agreement, or related industrial action. 

If any bargaining representatives or employees organising or engaging in industrial action have contravened an order, then any industrial action organised or engaged in will not be protected industrial action.[5]

It is not neccessary that the order must be one that continues in operation at the time of the proposed protected industrial action, or with which it is still possible to comply at that time, or that it be an order that would apply to the proposed protected industrial action.[6]

The Commission has broad powers under s.603 of the Fair Work Act to vary or revoke orders, including power to vary or revoke orders retrospectively.[7]

Hence, if a document cannot be filed within the time specified in an order made by the Commission, an application might be made for the time to be enlarged, or alternatively for the order to be revoked and a new order made allowing greater time, and, if there were good reason for the failure to file the document timeously, no doubt time would be enlarged, especially when it is appreciated that to refuse to enlarge time would preclude the possibility of protected industrial action by reason of s413(5).[8]

If, in exercise of the power conferred by s.603, an order were made by the Commission varying or revoking a previous order with effect from a time earlier than the alleged contravention, the effect would be that there would not have been a contravention of the order.[9]

The person organising or engaging in the industrial action must not organise or engage in the industrial action before the nominal expiry date of an existing enterprise agreement which is being replaced.

None of the following must be in operation in relation to the agreement:

• an order suspending or terminating industrial action
• a Ministerial declaration terminating industrial action, or
• a serious breach declaration.

A serious breach declaration can be made by the Commission where there are serious and sustained contraventions of a bargaining order that significantly undermine the bargaining process for a proposed enterprise agreement.[7]