Posted on 13 Apr. 2018
Defending the Right to Protected Industrial Action for Paper Australia Employees
By Slater and Gordon
We were very proud to support our comrades in the AMWU and at Paper Australia by defending their legitimate right to take protected industrial action in their fight for better working conditions.
More than 50 employees at the Preston Paper Australia site bravely went out on the grass and started protected industrial action in the form of an indefinite stoppage on January 16 this year in support of their bargaining for better working conditions.
During the stoppage, Paper Australia took the position that they would not negotiate while protected action was taking place.
On February 15, Paper Australia applied to the Fair Work Commission (FWC) to have the protected industrial action suspended for the purposes of a “cooling-off” period, on the basis that unless the action was suspended, the company would not negotiate.
Despite the perverseness of Paper Australia’s application, the FWC granted the suspension to Paper Australia.
The AMWU contacted Slater and Gordon and the firm quickly worked to have the decision overturned before the employees were required to return to work the next day in accordance with the FWC order.
Slater and Gordon lodged a notice of appeal, which included an urgent stay of the FWC’s order, and was able to get the FWC to list the case for hearing that night. In its submission, Slater and Gordon told the FWC:
“We have a situation where employees have been taking industrial action in the form of an indefinite stoppage for 30 days. As part of that there is obviously pressure being built up against the company. The action is taken legitimately as a mechanism under the Act to improve their bargaining position…If this order is to take effect at 6 am tomorrow, it would immediately or quickly undo all the work of the employees...There is no way to rectify that. If the stay is not granted, the employees then lose all the benefit of the 30 days that they have been engaged in …protected, legitimate industrial action.”
The FWC accepted Slater and Gordon’s submissions and granted a stay on the suspension order, meaning that the employees could continue their industrial action and were not forced back to work.
Last week the Full Bench of the FWC issued its decision in the appeal and overturned the original FWC decision.
According to Practice Group Leader Industrial and Employment Law, Geoff Borenstein, the only power Paper Australia employees had was protected industrial action and their employer was trying to take that away from them.
“If the original order had been allowed to take effect, it would have immediately undone all the hard work and sacrifices the workers had gone through and removed the pressure the Company was under,” Geoff says.
“Therefore, it was critical that we acted immediately to overturn the decision to preserve the rights of the union and the workers, and thereby, not suffer any loss in bargaining power.”
After the stay order was won, not surprisingly, the company appeared to reverse their “no negotiation during industrial action” policy, and agreed to meet and negotiate with the union.
On Tuesday 6 March, the workers returned to work after reaching an in-principle agreement. The agreement included no reduction in RDOs and every worker getting a pay rise.
In its decision, the Full Bench said that Paper Australia’s refusal to bargain contravened the Fair Work Act.
“If the legislature had intended for either party to be able to withdraw entirely from the bargaining process while protected industrial action was occurring, then such an option would have been identified in the FW Act, but it is not."
Geoff Borenstein spoke to Workplace Express after the Full Bench decision.
"In this case, the employer, Australian Paper, had taken the position that it would not bargain while the protected industrial action of the union continued," he said to Workplace Express.
"This is not an uncommon tactic by employers, and had the potential to significantly increase if the original decision was left to stand.
"It is therefore very important that the Full Bench stated that it was difficult to see how such a refusal could be consistent with the objects of the Act.
"The only effective bargaining tool which employees have is their ability to take protected industrial action.
"This decision decisively dispels the employers' mythology that they can defeat this vital right of employees by manipulating the system and refusing to bargain,” he said.
We recognize how hard it is to take protected action under the current Act and Slater and Gordon will continue to fight hard to protect and defend the rights of our comrades to take protected action.
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