Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

The report said:

The committee majority recommends that it would be desirable to ensure consistency of the drafting between these two provisions by providing that where industrial action threatens harm the threat should be imminent, and the harm to the third party should be economic harm.

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The committee majority notes the high threshold for FWA to order the suspension or termination of industrial action. It notes the likelihood that this power would be exercised only rarely in recognition of the right for employees to take protected action.

The new system may attract some criticism in that the new system allows for a fairer, more proportional response than under the current arrangements. That seems to be what we are putting forward. Whether you accept that the current regime may operate unfairly for those where FWA is called in too early, it may be that industrial action can progress. Your particular enterprise level agreement may be circumvented very early in the piece by the use of the current terminology. This is an obvious way of ensuring that there would be three tests to allow Fair Work Australia to intervene and then use these as a way to highlight what we are looking for: disrupt for an extended period the supply of goods or services to an enterprise carried on by the third party, significantly reduce the capacity of the third party to fulfil a contractual obligation or cause serious economic loss to a third party.

The provision is a modification of the existing provision. Senator Cameron raised questions about Australia’s international obligations in relation to the suspension of protected action. DEEWR advised that the department considers that the provisions of clauses 423, 424 and 426 are consistent with Australia’s international obligations under the ILO Freedom of Association and Protection of the Right to Organise Convention. It is about ensuring that we have the ILO ability to raise this issue and ensuring that we have the appropriate test in the legislation. It is about a balance between what might be considered to operate too harshly and that which might allow those parties, if there is a need to go to the commission if a business is suffering, or alleging that it is suffering, from industrial action, to then put that case and for Fair Work Australia to then be guided in its determination—and it would be guided by those three points that I have outlined.