1. Employment Disputes: issues and trends
The Honourable Les Kaufman
Senior Deputy President, Fair Work Australia

2. Lockouts to Break Strikes?
Will employers lock out their employees as a tactic to bring to an end lawful employee/union industrial action?
Have recent cases set a trend?

3. The Right to Strike
1973 – Australia ratified international conventions protecting the right to strike
1994 – Australia legislated to give effect to the conventions
The making of certified agreements at an enterprise level was encouraged
Industrial action could be protected from civil suit if taken in support of enterprise bargaining
© Commonwealth of Australia — Fair Work Australia

4. The Current Law Three types of protected industrial action:
Employee claim action (s.409)
Employee response action (s.410)
Employer response action (s.411)
Industrial action is only protected if authorized by a protected action ballot
Notice is required for taking employee claim action, but no notice is required for employer response action.
© Commonwealth of Australia — Fair Work Australia

5. Employer Response Action
Section 411 of the Fair Work Act:
Employer response action for a proposed enterprise agreement means industrial action that:
(a) is organised or engaged in as a response to industrial action by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who will be covered by the agreement; and
(b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and
(c) meets the common requirements set out in Subdivision B.
© Commonwealth of Australia — Fair Work Australia

6. Suspension /Termination of Protected Industrial Action
Fair Work Australia has the power to suspend or terminate protected industrial action in exceptional circumstances
The grounds are:
Causing, or threatening to cause, significant economic harm to the employer and employees (for employee claim action) (s423(2))
Causing, or threatening to cause, significant economic harm to any of the affected employees (s.423(3))
Threat to endanger the life, safety or welfare of the population or part of it (s.424(1)(c))
Threat to cause significant damage to the Australian economy or an important part of it (s.424(1)(d)).

7. Suspension of Protected Industrial Action
Fair Work Australia has the power to suspend protected industrial action
Grounds for suspension are:
If Fair Work Australia is satisfied that the suspension is appropriate to provide a “cooling off period” (s.425)
If Fair Work Australia is satisfied that the protected industrial action is adversely affecting the employer or the affected employees (s.426(2))
If Fair Work Australia is satisfied that the protected industrial action is threatening to cause significant economic harm to a third party (s.426(3))

8. Workplace Determination
If Fair Work Australia terminates protected industrial action
No bargaining representative can take protected industrial action
Parties have 21 day negotiating period
If no agreement is reached Fair Work Australia must make an arbitrated workplace determination (s.266)

9. Case Studies

10. The Qantas dispute
Three protracted industrial disputes between Qantas and:
Australian Licenced Aircraft Engineers Association;
Transport Workers’ Union of Australia, and
Australian and International Pilots Association
All unions had concerns regarding the job security of their members.
All unions took protected industrial action
Qantas suffered financial and reputational damage
Qantas was losing $15m per week as a result of the claim action
600 flights had been cancelled
70,000 passengers affected

11. The Lock Out
Qantas gave three days’ notice that it planned to lock-out its employees
The entire fleet was grounded immediately
Australian Government lodged an application under s.424 of the Act that Fair Work Australia terminate the protected industrial action
Fair Work Australia held an urgent hearing over that weekend

12. Full Bench Hearing
The Full Bench found that the proposed lockout threatened to cause significant damage to the Australian economy, particularly to:
Aviation industry, and
Tourism industry
The Bench opted to terminate rather than suspend the protected action

13. The Aftermath The parties had 21 days to negotiate an agreement
No agreement was reached
ALAEA and Qantas later reached an agreement which became a consent Workplace Determination
Workplace Determinations are being arbitrated by Fair work Australia for the pilots and TWU

14. The Schweppes Dispute

15. Schweppes and United Voice
The company sought an agreement involving a significant change in the rostering of shifts
The company wanted to introduce a 12 hour shift
Employees had been accustomed to significant earnings as a result of overtime at penalty rates
Employees engaged in protected industrial action
Schweppes locked out its employees
Schweppes managed to continue to meet productivity requirements through the use of management and contractors
Workers set up a picket at the worksite

16. Termination
Soon after lockout (four days) Schweppes applied under s.423 to terminate the protected industrial action
It argued that its lawful lockout was causing or threatening to cause significant economic harm to any of the employees who were to be covered by the agreement
I declined to grant that application
Six weeks after the lockout anonymous letters were mailed to my chambers
I decided to call on the matter at Fair Work Australia’s initiative
Both parties conceded that the protected action should be terminated
No agreement was reached within 21 days. Matter listed for a workplace determination before a Full Bench.

17. Do Two Swallows a Summer Make?
Qantas was unique
The Waterfront?
A Repeat of Schweppes?
A risky proposition
A fairly high bar
Difficult for an employer to prove
Suspension a possibility
Has a Trend Been Set?