See Fair Work Act s.411
Employer response action for a proposed enterprise agreement means industrial action that:
- is organised or engaged in as a response to industrial action by:
- a bargaining representative of an employee who will be covered by the proposed enterprise agreement, or
- an employee who will be covered by the proposed enterprise agreement; and
- is organised or engaged in by an employer that will be covered by the proposed enterprise agreement against one or more employees that will be covered by the proposed enterprise agreement.
Employer response action must be in response to industrial action, as defined, that is happening. Employer response action cannot, by definition, be in response to industrial action that is threatened, impending, probable or even imminent at the time that the employer's industrial action is implemented.
As defined, the only form of employer response action is a lockout.
An employer may also take other action, which is not 'employer response action', in response to employee claim action. This other action can include:
- standing-down employees in accordance with Part 3–5 of the Fair Work Act, or
- declining to pay employees for partial work bans in accordance with partial work bans under s.471(4).
In Australian and International Pilots Association v Fair Work Australia the Full Court of the Federal Court considered whether there needed to be a link between employer response action and industrial action taken by employees. The Court found that the terms of the Fair Work Act limit an employer to some form of causally connected response to employee industrial action.
The words 'as a response' require only that the lockout be seen as causally connected to employees' industrial action. It does not have to be reasonable, proportionate or rational.
A causal connection is the relation of cause and effect.
In this context the ‘cause’ is the employee industrial action and the 'effect' is the employer response action.
Employer response action can be protected industrial action if it is engaged in in accordance with s.411 of the Fair Work Act in response to employee industrial action which is or is not protected action.