Australia: JJ Richards and Sons - a lesson in how not to deal with Unions
Employment and Safety Update

Summary

The Full Court of the Federal Court recently determined that the Fair Work Act provides a union with the right to take protected industrial action to bring an unwilling employer to the bargaining table.

In JJ Richards & Son v Fair Work Australia, a Full Court of the Federal Court of Australia confirmed that a union can take protected industrial action in the face on an employer who does not wish to bargain for an enterprise agreement. Importantly, the Court confirmed that there is no requirement for a union to seek a majority support determination or scope order before undertaking protected industrial action.

Facts

The facts leading to this decision can be summarised as follows:

In early 2011, the TWU approached JJ Richards to bargain for an enterprise agreement. JJ Richards refused, indicating that, at that time, the Company did not consider that an enterprise agreement was viable for its business.

A short time later, the TWU applied for and obtained authorisation from Fair Work Australia to conduct a protected industrial action ballot to determine if the employees wished to take industrial action in support of their claim to pursue an enterprise agreement.

JJ Richards, and later the Australian Mines and Metal Association, challenged the order granted by Fair Work Australia. JJ Richards contended that the Fair Work Act prevented a protected industrial action ballot being held and action taken before bargaining had commenced.

In a unanimous decision, a Full Court of the Federal Court of Australia considered the statutory scheme and found that there was no requirement in the legislation that required the parties to have commenced bargaining before a protected action ballot could be held.

The Court held that the only requirement to be satisfied is that the union must have 'genuinely tried' to bargain, which the Court found was satisfied by writing to the Company.

Key lessons for employers

Employers should take careful note of the decision and ensure that when in receipt of correspondence from a union seeking to initiate discussions relating to bargaining for an enterprise agreement that:

• the correspondence is carefully reviewed;
• any draft response carefully considered and well structured;
• avoid not responding at all; and
• advice is taken prior to issuing any response.

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This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.