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

Earlier, you asked whether there have been any decisions made in respect of it. There are two that we are aware of, the AMWU and the CEPU and Ford case—I can give you the reference for that or we can dig it up—and the AEU and the Northern Territory Department of Education and Training case. The latter was overturned on appeal. That is the only case law that surrounds this. Action is not often taken in this area.

We are talking about ensuring that within the fair and tough rules we get the balance right and we ensure that we give sufficient guidance to Fair Work Australia about dealing with those provisions. We have erred on the side of providing more guidance; more words. I accept that can lead to people thinking that maybe it should be left at the simple rule under 426. We have tried to get the balance right by providing that guidance so that Fair Work Australia comes to the correct decisions in this area.

It is a significant step to remove someone’s right to a particular protected industrial action once they have commenced it and they are seeking to further their claims. For a third party who is significantly removed from the remote action to put their hand up and say, ‘We think that the right to this protected industrial action should be removed under provision 426.’ That might happen because the industrial action is adversely affecting an employer or an employee who will be covered by the proposed enterprise agreement. I will not go through the whole provision.

We have taken on board what the Senate committee recommended. That cannot be ignored lightly. The committee recommended this, and the government does take those committee reports seriously. We looked at what we could do and, inspired by that recommendation, came up with a form of words which we think encapsulates all of those circumstances and allows Fair Work Australia to come to the correct decision when looking at these matters. There is also this clause:

... if it—

FWA—

is satisfied that the protected industrial action has threatened, is threatening or would threaten to endanger the life, the personal safety, health or welfare of the population ... or to cause significant damage to the Australian economy ...

That remains in the picture. We are looking at damage that is substantively economic.

If I could reverse this—although the advisers might think otherwise—if you are a large company, you will have many distributors, sub-distributors and sub-sub-distributors. They are all third parties. If anywhere down the chain a third party puts their hands up and says, ‘I’m being threatened and I want to stop this action,’ you might find that under provision 426 they are able to succeed in that argument. This is where balance comes in. Those who are seeking to take protected industrial action in furtherance of their claim, which might be a large work force of 1,000 or 2,000 people, might be able to be stymied—that protection is being removed—because of a third party.

It may be that that third party has a serious case. What we have said in respect of that is they will have to meet certain criteria. They will not be able to put their hand up under the broader section, but there will be three criteria so that Fair Work Australia can focus in on any real harm and determine where the harm should fall. Should it fall on those seeking to take protected action in furtherance of their collective agreement or should the harm fall on the third party? We will not determine that; Fair Work Australia will determine where the onus lies and where the harm should fall. Should the harm be the removal of the right to a protected industrial action or should the harm be to the third party? We wanted to ensure that Fair Work Australia has clarity around those provisions.