See Fair Work Act s.423
Where the action is employee claim action, the Commission may make an order suspending or terminating the protected industrial action that is being engaged in if satisfied that the action is causing, or threatening to cause, significant economic harm to:
Where the action is employee response action or employer response action, the Commission may suspend or terminate the protected industrial action that is being engaged in if satisfied that the action is causing, or threatening to cause, significant economic harm to any of the employees who will be covered by the proposed enterprise agreement.
The Commission may only be 'satisfied' if its decision to that effect is based upon relevant considerations and the evidence.[1]
In other words, if industrial action is being undertaken by the employer (whether protected or not), the Commission is only required to consider the harm to the employees. This reflects the fact that an employer that has locked out its employees should not then be able to have the employees' protected industrial action terminated based on the significant harm being caused to it.[2]
Factors relevant to working out whether the protected industrial action is causing, or threatening to cause, significant economic harm include:
If the Commission is considering terminating the protected industrial action, the following will also be relevant:
If the protected industrial action is threatening to cause significant economic harm, the Commission must be satisfied that the harm is imminent.
The Commission must also be satisfied that:
"…the expression 'significant harm' in s.426(3) should be construed as having a meaning that refers to harm that has an importance or is of such consequence that it is harm above and beyond the sort of loss, inconvenience or delay that is commonly a consequence of industrial action.
In this context, the word 'significant' indicates harm that is exceptional in its character or magnitude when viewed against the sort of harm that might ordinarily be expected to flow from industrial action in a similar context." [3]
All forms are available on the Forms page of the Commission's website
The Commission may make an order under s.423:
Note: The Fair Work Regulations do not currently prescribe any additional persons.
[1] Coal and Allied v AIRC [2000] HCA 47 (31 August 2000) at para.48; citing Coal & Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union Print P8382 (AIRCFB, Giudice J, Munro J, Larkin C, 29 January 1998) at p. 17, [(1998) 80 IR 14].
[2] Explanatory Memorandum to Fair Work Bill 2008 at para. 1713.
[3] Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd and Kentz E & C Pty Pty Ltd [2010] FWAFB 6021 (Lawler VP, Ives DP, Roe C, 6 August 2010) at para. 44, [(2010) 198 IR 360].