EXCERPT FROM THE LAST WORD COLUMN*
By Jeffrey Phillips SC
One of the worrying aspects of the Fair Work Act 2009 (Cth) is the increased use of the “protected action” provisions of the Act. These provisions permit industrial organisations to engage in strikes or industrial action during designated bargaining periods without the consequences which would normally flow from the common law. Strikes at common law are unlawful, either being breaches of contract or the economic tort of interfering with contractual relationships. In both instances, damages can flow by the refusal to perform the contract or by inducing its breach. The protected action provisions of the Fair Work Act, if granted after a proper application, remove this liability. However, have the protected action provisions gone too far and is the hurdle too high for an employer to jump to have protected action ended?
The evidence before the Full Bench of Fair Work Australia in the Qantas dispute revealed that prior to 29 October 2011, the protected action engaged in by the unions had affected 70,000 passengers, led to the cancellation of 600 flights and the grounding of seven aircraft with a total damage bill of $70 million (see Re Minister for Tertiary Education, Skills, Jobs and Workplace Relations  FWAFB 7444 at ). The lockout of pilots, ramp, baggage-handling and catering employees and licensed aircraft engineers on Saturday, 29 October led to the Full Bench intervening and suspending the protected action period. This was no doubt brought about by the dire consequences that the grounding of the Qantas fleet would have had on the tourism industry, which has an estimated contribution of 2.6% to gross domestic product and as having 500,000 employees. The value of inbound tourism is estimated at $24 billion per year (at ). One can see the devastating affect it would have on the entire economy. However, the fact that Qantas could point to its own losses of $70 million, which did not bring the intervention of Fair Work Australia sooner, is staggering. The Act needs radical surgery to remove such a provision which permits industrial action of the “slow bake” model over a period of time. Perhaps, Qantas has been able to withstand these losses, but most businesses in Australia could not.
* The full citation is (2011) 2 WR 167.