3. Industrial Action

In compiling the Second Wave Bill it seems clear that the Government has had regard to a specially prepared list of industrial law decisions. That list contains all those cases where unions have had any degree of success in the various contests that have taken place since the introduction of the Government’s first round of amendments in 1997. Large parts of the “Second Wave” Bill now before the Federal Parliament are a direct response from the Minister to those decisions.

The proposed changes to the Act relating to industrial action provide the clearest example of how this list has helped fashion the Second Wave.

In CFMEU and Coal and Allied, a Full Bench of the Australian Industrial Relations Commission rejected the notion that unprotected industrial action would always be “illegitimate”. The Second Wave amendments will insert a new object into the Act that will make all unprotected industrial action inconsistent with the purposes of the Act.
The same Bench said that the Commission has a discretion “at large” to decide the circumstances in which orders to stop industrial action should be made. The Amendments effectively seek to remove that discretion.
Various decisions of the Commission and the Federal Court have made it plain that for valid industrial action orders to be made, parties bound by those orders must be properly identified and be under no doubt as to precisely what action the orders seek to restrain (eg MTIA v AFMEPKIU, Patrick Stevedores v MUA). One would have thought that this was a fairly widely received and well-settled principle. However the proposed section 127(1D) says the Commission does not have to specify the particular industrial action, whilst s.127(1F) permits orders against “any other person or organisation” engaged in any unprotected industrial action where orders are made against the protagonists.
The Federal Court has also determined that not all industrial action occurring during the term of a certified agreement is prohibited. (Thiess Contractors Pty Ltd and anor v. CFMEU.). The amendments will reverse this decision.
In the Worsley case, an AIRC Full Bench set aside s.127 orders that were made in the absence of any “actual, impending or probable” industrial action. The new Act would permit orders to be made if unprotected action has happened within the preceding 3 months and further unprotected action is reasonably possible.
Unions have also succeeded in obtaining s.127 orders against employers for the various forms of industrial action taken by them. The only form of industrial action by employers for which such orders would be available under the new regime is the lock-out.
Finally, on the question of enforcement of s.127 orders, the Federal Court in Australian Paper Pty Ltd v. CEPU has given an erudite account of the relevant principles, in particular those principles applying to enforcement on an interim basis:

By reason of (the) recurring features of industrial disputes, ordinarily, justice will best be served if the Court approaches the grant of an interim injunction against industrial action with particular caution.

Although the Court stressed such an approach was not a universal or inflexible rule, it gave compelling reasons for the adoption of such approach. It also made reference to the fact that the scheme of the Act itself now favoured a minimum of so-called third party intervention. The Court found that “the too ready grant of interim injunctions by courts in industrial disputes results in the diminution of the authority of the Court”.

The Court also made reference to the conclusions of Benjamin Aaron on the US experience:

“the preliminary injunction (generally) spells defeat for the defendant’s cause..... Such a result is wrong, not because we can be sure that the defendant’s cause is just and its objectives lawful – they frequently are not – but because the judicial power has been used prematurely and unfairly to aid one party to a private dispute”.

In the words of Frankfurter and Greene quoted in the same case:

“The tentative truth results in making ultimate truth irrelevant”.

The Government has now seen fit to reverse it’s laissez faire approach to Court intervention in cases involving industrial action. Under the amendments, the Court must make such interim order as are considered appropriate unless satisfied serious prejudice would result.

Of course there is nothing unusual about Parliament over-riding court decisions. This is commonplace when poor drafting has led the court to unintended results or because sound policy reasons have emerged militating against findings that might flow from the original legislation.

But there is only one real policy consideration behind the Second Wave proposals on industrial action – to put all the legislative weapons in the arsenal of the employers and to tie the hands of unions so that industrial action sanctioned by the Act is either impossible or useless. The Minister has just about covered all the cases on what has proved to be a very useful Departmental checklist.

As the present legislation breaches a binding ILO Convention on the Right to Strike, the Second Wave changes are nothing short of disgraceful.

Whilst outwardly trumpeting the cause of market forces shaping the industrial relations landscape, in truth Mr Reith’s Bill will make the Workplace Relations Act amongst the most prescriptive on the statute books. Removal of the discretion ordinarily vested in industrial tribunals will provide the finishing touch to an extraordinarily one-sided piece of legislation.

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