Workers can strike without bargaining

The Federal Court has ruled workers have the right to launch industrial action despite never having begun bargaining negotiations with an employer.

In a judgment released in Melbourne on Friday, the Federal Court of Australia found two earlier rulings by Fair Work Australia protecting workers’ rights should be upheld.

“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,” said workplace lawyer Michael Doherty for the Transport Workers’ Union (TWU).

The court’s decision stemmed from a 2010 dispute between the TWU, representing garbage collectors in Sydney’s western council of Canterbury, and waste management company JJ Richards.

Mr Doherty said workers had tried to enter into a new workplace agreement but JJ Richards had refused, which prompted the industrial action.

But the company told the court it had responded to the union by saying it did not “believe that bargaining for an enterprise agreement is viable,” citing how an employment contract was due to expire in the following year.

Supported by the Australian Mines and Minerals Association, the company took the matter to Fair Work Australia.

But it lost two Fair Work rulings and has now lost a Federal Court ruling in a 3-0 decision that backs the earlier decisions.

Federal Court Justice Geoffrey Flick, however, did note in his reasons for the decision that the Fair Work Act orders “have a potential significance extending beyond the private interests of the parties to the present dispute”.

In fact, the court’s decision immediately sent ripples through industrial workplace reform groups – some who are now demanding the government quickly amend the Fair Work Act to stop unions from being able to strike before bargaining has even commenced.

“This decision has the potential to open crippling industrial action simply as a tactic to force negotiations rather than as an industrial tool of last resort,” the far-right think tank HR Nicholls Society said in a statement.

“Unless amended it will see unions striking first and negotiating later with disastrous consequences for individual businesses and the economy as a whole.”

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