On 25 January 2018, Senior Deputy President Hamberger of the Fair Work Commission suspended the right of the employees of Sydney Trains and NSW Trains to take industrial action for six weeks (see Reasons for Decision, Sydney Trains; NSW Trains and The Hon. Dominic Perrottet, Minister for Industrial Relations (New South Wales) [2018] FWC 632). The decision avoided a planned strike on 29 January that would have caused major disruption for commuters and businesses.

Hamberger SDP was satisfied on the evidence that the planned industrial action threatened to harm the welfare of a part of the population and threatened to damage an important part of the economy. Accordingly, an order was issued under s.424 of the Fair Work Act 2009 suspending the right of employees to take industrial action.

The ACTU and some academics have criticised the decision as lowering the bar for when the Fair Work Commission can intervene in bargaining disputes to protect the community’s interests, and have called for the Fair Work Act 2009 to be amended to give employees more rights to take industrial action.

In its public comments, Ai Group welcomed the decision, and expressed the view that the bar remains high under s.424 of the Fair Work Act and that the decision is consistent with previous authorities.

If you would like more information about union rights of entry and industrial action, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice about union actions on your work site and seeking orders from the Fair Work Commission to stop industrial action, please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au.