Planning crucial in wake of JJ Richards ruling says lawyer

Fair Work Australia move means employers must be ahead of the game

By Rob McKay | June 7, 2011

Fair Work Australia’s Full Bench ruling in the JJ Richards case will put the onus on employers to be very pro-active in the lead-up to enterprise-bargaining negotiations, according to an employment law expert.

The Full Bench has decided that a union can ballot for industrial action without having to show that a majority of workers support its stance if it can show it is "genuinely trying to reach agreement".

This has removed a shield for employers from protected industrial action that many employer groups and advocates had believed was in the spirit or intent of the legislation but which appears to have been ignored in favour of its wording.

Hunt & Hunt Lawyers Partner Tim Lange advises employers to get on the front foot early in the piece.

"Rather than refusing to bargain with a minority, in circumstances where that minority could strangle an organisation through protected industrial action, you’re going to have to take positive steps towards dealing with those bargaining demands," Lange says.

He believes employers are better placed if they are "the person that takes the first step, who has got a plan, who has got a process in mind and who uses the good-faith bargaining obligations, which include that a person has to respond to your request for information and give reasons for any refusals.

"If you … put a reasonable proposal forward and that’s refused, you can demand your reasons.

"If those reasons really don’t amount to much, you ultimately have the capacity to go to your own employees and … it’s up to them whether they approve an agreement.

"If the agreement is approved, then it covers people including a small minority who are being organised to take industrial action … [and] the capacity to take that protected industrial action ends."

This means there would no longer be a union veto on what is put to employees.

Lange believes the same would apply if union-members are in the majority, as "the only people doing the voting are the employees".

The ruling had followed earlier decision permitting the Transport Workers’ Union to hold a ballot of its members authorising TWU members taking industrial action, before J.J. Richards had agreed to bargain under the Fair Work Act, and without first demonstrating that a majority of the whole workforce supported the early resort to industrial action.

Langes says the employers' side had had a heavy involvement in the development of the legislation and had gained a "fixed view" at the time of what was being created.

"But it’s fair to say that [the Full Bench’s ruling] is a reasonably straight-forward interpretation.

"I don’t see them as having given a decision that was completely ‘out of the box’.

"It was always on the cards that this could have gone this way but for my money , it is not the outcome that was contemplated by those who were involved in the process of putting the Act together.

"that said, there are always going to be surprises when the rubber hits the road."

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