Federal Court win for workers' rights

23 April 2012

In a landmark decision, the Full Court of the Federal Court unanimously backed a Fair Work Australia decision that members of the Transport Workers' Union were entitled to take protected industrial action against employers refusing to bargain with them for a collective agreement.

Michael Doherty, Workplace Counsel from Maurice Blackburn Lawyers who acted for the TWU, said the Court dismissed an application by JJ Richards and Australian Mines and Minerals Association (AMMA) seeking writs to quash two decisions made by FWA "This is an important decision affirming the ability of workers across the country to take protected industrial action to persuade resistant and recalcitrant employers to come to the bargaining table," Mr Doherty said.

"The decision sends a message to bosses around the country that there are consequences for employers who do not respect their workers requests to enter into good faith bargaining for a collective agreement."

The Decision by the Federal Court brought to an end a long running saga that commenced in December 2010 when the TWU acting as a bargaining agent for its members sought to initiate bargaining with JJ Richards for a new agreement covering workers performing garbage collection for Canterbury Council. JJ Richards consistently refused to enter into bargaining.

The TWU subsequently sought and were granted two separate protected action ballot orders under section 437 of the Fair Work Act. (FWA). JJ Richards supported by the Australian Mines and Minerals Association ("AMMA") twice Appealed to Fair Work Australia seeking to overturn those decisions, on the grounds that protected action could not occur unless bargaining had commenced. Both appeals failed to convince a Full Bench of Fair Work Australia that the orders should be overturned on those grounds.

Both JJ Richards and AMMA lodged an application to the Federal Court for writs quashing the decision to overturn the decision of a single member of FWA to make the second protected ballot order in February 2011 and the decision of a Full Bench of FWA in June 2011. In a 3-0 decision today, the Federal Court dismissed the application finding that there was no jurisdictional error by FWA in February 2011 or the by Full Bench of FWA in June 2011.

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