Fair Work Commission

Cooling off period

See Fair Work Act s.425

The Commission must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the Commission is satisfied that the suspension is appropriate taking into account the following matters:

• whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue
• the duration of the protected industrial action
• whether the suspension would be contrary to the public interest or inconsistent with the objects of the Fair Work Act,
• any other matters that the Commission considers relevant.^[1]

The Commission may make the order only on application by:

• a bargaining representative for the agreement, or
• a person prescribed by the Fair Work Regulations.

Note: The Fair Work Regulations do not currently prescribe any additional persons.

Significant harm to a third party

See Fair Work Act s.426

The Commission must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the following requirements are met.

Requirement – adverse effect on employers or employees

The Commission must be satisfied that the protected industrial action is adversely affecting:

• the employer, or any of the employers, that will be covered by the proposed enterprise agreement, or
• any of the employees who will be covered by the proposed enterprise agreement.

Requirement – significant harm to a third party

The Commission must also be satisfied that the protected industrial action is threatening to cause significant harm to any person other than:

• a bargaining representative for the proposed enterprise agreement, or
• an employee who will be covered by the proposed enterprise agreement.

For the purposes of this specific requirement, the Commission may take into account any matters it considers relevant, including the extent to which the protected industrial action threatens to:

• damage the ongoing viability of an enterprise carried on by the person
• disrupt the supply of goods or services to an enterprise carried on by the person
• reduce the person's capacity to fulfil a contractual obligation, or
• cause other economic loss to the person.

Requirement – suspension is appropriate

The Commission must also be satisfied that the suspension is appropriate taking into account the following:

• whether the suspension would be contrary to the public interest or inconsistent with the objects of the Fair Work Act,
• any other matters that the Commission considers relevant.

Case example

Orders – significant harm to a third party

The Commission may make an order under s.426 only on application by:

• an organisation, person or body directly affected by the protected industrial action other than:
  • a bargaining representative for the proposed enterprise agreement
  • an employee who will be covered by the proposed enterprise agreement
• the Minister
• if the industrial action is being engaged in in a State that is a referring State as defined in section 30B or 30L – the Minister of the State who has responsibility for workplace relations matters in the State
• if the industrial action is being engaged in in a Territory – the Minister of the Territory who has responsibility for workplace relations matters in the Territory,
• a person prescribed by the Fair Work Regulations.

Note: The Fair Work Regulations do not currently prescribe any additional persons.

References

^[1] See for eg Nyrstar Port Pirie Pty Ltd v Construction, Forestry, Mining and Energy Union and Others [2009] FWA 1144 (O'Callaghan SDP, 17 November 2009).