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  • Job loss or dismissal
    • Types of dismissal and termination
    • Unfair dismissal
      • About unfair dismissal
        • What is unfair dismissal?
        • Who the law protects from unfair dismissal
        • Check eligibility for unfair dismissal
      • The rules for small business owners
      • The process for unfair dismissal claims
      • Apply for unfair dismissal (Form F2)
        • Check you are ready to apply for unfair dismissal
      • Respond to an unfair dismissal claim
        • What to do when an employee claims unfair dismissal
        • Respond to a claim for unfair dismissal (Form F3)
          • Help with Form F3 – Employer response to unfair dismissal
        • Object to an unfair dismissal claim
          • Object to an application for unfair dismissal remedy (Form F4)
          • Jurisdiction hearings in unfair dismissal cases
      • Conciliation for unfair dismissal
        • What is conciliation?
        • Tips to prepare for conciliation
        • What happens in a conciliation meeting
        • Options at conciliation for unfair dismissal
        • The role of the independent conciliator
        • Ask to delay a conciliation
      • Withdraw your application for unfair dismissal
      • Possible results of unfair dismissal claims
        • Compensation for unfair dismissal
          • The formula to calculate compensation
        • Reinstatement after unfair dismissal
        • Outcomes or remedies at an unfair dismissal hearing
    • Dismissal under general protections
      • About general protections
        • Understand general protections
        • Who the general protections laws cover
          • The difference between contractors and employees
        • Check eligibility for general protections
        • What is adverse action?
        • Prohibited reasons in general protections
        • Other workplace protections
      • The process for general protections dismissal
      • Apply for general protections – dismissal (Form F8)
      • Responding to a general protections claim
        • Response to general protections application (Form F8A)
        • Object to a general protections dismissal claim
      • Conferences for general protections dismissal
        • Tips to prepare for a general protections conference
      • Possible outcomes of a general protections – dismissal case
      • Apply for arbitration of a general protections – dismissal case (Form F8B)
      • Take your general protections case to court
    • Unlawful termination
      • Apply for help with unlawful termination (Form F9)
      • Respond to an application for unlawful termination (Form F9A)
      • Agree to arbitration for unlawful termination (Form F9B)
    • Redundancy
    • Respond to a claim against a business
  • Issues we help with
    • Common issues in the workplace
      • Resolve a dispute in your workplace
      • Apply for help to promote cooperative workplaces and prevent disputes (Form F79)
    • Bullying
      • The process to resolve workplace bullying
      • What is bullying at work?
        • About reasonable management action
      • What to do if you’re bullied at work
        • How we help stop workplace bullying
        • Who can apply to stop bullying
          • Check eligibility for an order to stop bullying
        • Apply to stop workplace bullying (Form F72)
      • Respond to a bullying claim
        • Respond as an employer or principal in a bullying application (Form F73)
        • Respond as a person named in a bullying application (Form F74)
      • Conciliation for bullying at work
        • Prepare for a conciliation session
    • Sexual harassment
      • What is sexual harassment at work
      • Who can apply for orders to stop sexual harassment at work
      • Discrimination, the general protections and work health and safety
      • What to do if you’re sexually harassed at work
      • The Commission’s process to resolve sexual harassment at work
      • Apply to stop sexual harassment at work
      • Respond to an application about sexual harassment at work
      • Conciliation about sexual harassment at work
      • Conferences and hearings about sexual harassment at work
    • Discrimination
    • Help for small business owners
      • What we are doing to help small business
    • Casual to permanent status
      • Apply to resolve a dispute about casual conversion (Form F10A)
    • Dispute about an award or agreement
      • Apply to resolve a dispute about an award or agreement (Form F10)
    • Disputes about general protections
      • Process for general protection disputes
      • Apply for general protections – no dismissal (Form F8C)
      • Responding to a general protections claim not involving dismissal
    • Industrial action
      • Organise a protected action ballot
        • Apply to hold a protected action ballot (Form F34)
        • Apply to extend the 30-day period for protected action (Form F34A)
      • Types of industrial action
      • Payments during industrial action
      • Ballot results
      • Apply to resolve a stand down dispute (Form F13)
      • Apply to stop unprotected industrial action (Form F14)
    • Cooperative Workplaces program
      • Interest-based approaches
      • Interest-based bargaining
      • Interest-based consultation
      • Interest-based problem-solving
    • Jobkeeper disputes
      • Apply to resolve a jobkeeper dispute (Form F13A)
  • Agreements & awards
    • Enterprise agreements
      • Find an enterprise agreement
        • Agreements in progress
      • About enterprise agreements
        • About single and multi-enterprise agreements
        • About greenfields agreements
        • Historical agreements and instruments
        • Statistical reports on enterprise agreements data
      • Make an enterprise agreement
        • The process to make an agreement
        • Before you start bargaining
          • Timeframes to make an agreement
          • Date calculator for single enterprise agreement
          • Plan to communicate your agreement
          • Bargaining representatives
            • Who can be a bargaining representative?
            • The role of representatives
            • Cancel a bargaining representative
          • Apply for a majority support determination (Form F30)
          • Request to bargain for a replacement agreement
        • Start bargaining
          • Scope orders for enterprise agreements
            • Apply for a scope order (Form F31)
          • Resolve a dispute about bargaining
            • Apply to resolve a bargaining dispute (Form F11)
            • Apply for a bargaining order (Form F32)
            • Apply for a serious breach declaration (Form F33)
          • How to bargain in good faith
          • NERR – Notice of Employee Representational Rights
            • Create the NERR
            • Distribute the NERR to employees
        • Develop the agreement
          • Finalise the draft enterprise agreement
          • Guide to the BOOT
            • How we apply the Better Off Overall Test
            • Check an agreement can pass the BOOT
          • Terms and dates to put in an agreement
          • When employees genuinely agree to an agreement
          • Avoid common errors in agreements
            • Meet the terms in the NES
            • Sign an agreement the right way
            • Make sure your NERR is valid
            • Make 'loaded' rates clear
            • Explain what you did in the access period
            • Ways to pass the BOOT
        • Hold a vote on the agreement
          • Explain the agreement to employees
          • What to give employees during the 'access period'
          • Voting process for agreements
          • Record how and when employees vote
        • Create a greenfields enterprise agreement
          • Apply to approve a greenfields agreement (Form F19)
      • Change a single enterprise agreement
        • Apply for approval to change an agreement (Form F23)
        • Employer's declaration to vary an agreement (Form F23A)
        • Union declaration for variation of an enterprise agreement (Form F23B)
        • Apply to vary an agreement to resolve a casual conversion issue (Form F23C)
        • Apply to terminate an agreement after the nominal expiry date (Form F24B)
      • Approval of enterprise agreements
        • The process to approve an agreement
        • Requirements an agreement must meet
        • About undertakings in agreements
          • How to write an undertaking
        • Approval timelines for agreements
        • Is your agreement application ready to lodge?
        • Forms for approval of agreements
          • Apply to approve a new enterprise agreement (Form F16)
          • Employer declaration for an enterprise agreement (Form F17)
          • Union declaration for an enterprise agreement (Form F18)
          • Employee rep declaration for an agreement (Form F18A)
          • Employer's declaration for a greenfields agreement under s.182(3) (Form F20)
          • Union declaration for a greenfields agreement (Form F21)
          • Apply to approve a new greenfields agreement made under s.182(4) (Form F21A)
          • Employer's declaration for a greenfields agreement under s.182(4) (Form F21B)
          • Union declaration for approval for a greenfields agreement under s.182(4) (Form F21C)
      • Terminate an enterprise agreement
        • Apply to terminate an enterprise agreement by agreement (Form F24)
        • Ways to terminate an individual agreement (IABTI)
        • Declaration to support the termination of an agreement (Form F24A)
        • Declaration to support the termination of an agreement after nominal expiry (Form F24C)
        • Declaration in response to application to terminate an agreement after the expiry date (Form F24D)
      • Sunsetting of zombie agreements
        • What to do if I have a zombie agreement
        • What will happen to my zombie agreement
        • Extending a zombie agreement
    • Awards
      • Find an award
      • Create or change an award
        • Applications to create or change an award
        • Apply to create, change or revoke an award (Form F46)
      • Modern awards pay database
        • Data dictionary
      • What awards contain
      • The difference between awards and agreements
      • Awards research
    • Minimum wages and conditions
      • The national minimum wage
        • National minimum wage orders
      • National Employment Standards
      • Where to find your pay and conditions
      • Superannuation
  • Hearings & decisions
    • Hearings schedule
      • Adelaide hearings
      • Brisbane hearings
      • Canberra hearings
      • Darwin hearings
      • Hobart hearings
      • Melbourne hearings
      • Perth hearings
      • Sydney hearings
      • Regional hearings
    • How the Commission works
      • What to do when we set your tribunal date
      • About conferences and hearings
      • Prepare for a conference or hearing
      • Possible outcomes of a hearing or conference
      • What happens during a hearing
        • Inside the hearing room
      • On the day of your conference or hearing
      • Recording a hearing or conference
      • Ask to delay a hearing or conference
    • Appeal a decision or order
      • The appeals process
        • Reasons you may appeal a decision or order
        • Who can appeal a decision?
        • How to appeal a decision
        • Order to ‘stay’ all or part of a decision
        • Create an appeal book
      • Prepare for an appeal hearing
        • Prepare an outline of submissions for an appeal
        • What happens in an appeal hearing
        • Who sits on an Appeal Bench?
      • Timetable of appeal hearings
      • Results of appeals
      • Apply for permission to appeal (Form F7)
    • Decisions and orders
      • National wage and safety net review decisions
      • Significant decisions and summaries
    • Major cases
      • 4 yearly review
        • All decisions and statements
        • Alleged NES inconsistencies
        • Awards under review
        • Common issues
          • Abandonment of employment
          • Annual leave
          • Annualised salaries
          • Apprentice conditions
          • Award flexibility
          • Blood donor leave
          • Casual employment
          • Family and domestic violence leave
          • Family friendly work arrangements
          • Micro business schedule
          • National Training Wage
          • Overtime for casuals
          • Part-time employment
          • Payment of wages
          • Penalty rates case
            • Decisions & statements
            • General Retail Industry Award
            • Hair and Beauty Industry Award
          • Public holidays
          • Transitional provisions
        • Final stage proceedings
        • Plain language re-drafting
          • Fast Food Industry Award
          • Hair and Beauty Industry Award
        • Timetable
      • Annual wage reviews
        • Annual Wage Review 2022–23
          • Research for the Annual Wage Review 2022–23
          • Timetable for the Annual Wage Review 2022–23
        • Annual Wage Review 2021–22
          • Additional material for the Annual Wage Review 2021–22
          • Correspondence for the Annual Wage Review 2021–22
          • Decisions & statements for the Annual Wage Review 2021–22
          • Determinations for the Annual Wage Review 2021–22
          • Draft determinations for the Annual Wage Review 2021–22
          • National Minimum Wage Order 2022
          • Notices of listing for the Annual Wage Review 2021–22
          • Research for the Annual Wage Review 2021–22
          • Statistical reporting for the Annual Wage Review 2021–22
          • Submissions for the Annual Wage Review 2021–22
          • Timetable for the Annual Wage Review 2021–22
          • Transcripts for the Annual Wage Review 2021–22
        • Annual Wage Review 2020–21
          • Additional material for the Annual Wage Review 2020–21
          • Consultations for the Annual Wage Review 2020–21
          • Correspondence for the Annual Wage Review 2020–21
          • Decisions & statements for the Annual Wage Review 2020–21
          • Determinations for the Annual Wage Review 2020–21
          • Draft determinations for the Annual Wage Review 2020–21
          • National Minimum Wage Order 2021
          • Notices of listing for the Annual Wage Review 2020–21
          • Research for the Annual Wage Review 2020–21
          • Statistical reporting for the Annual Wage Review 2020–21
          • Submissions for the Annual Wage Review 2020–21
            • Initial submissions for the Annual Wage Review 2020–21
            • Post-budget submissions for the Annual Wage Review 2020–21
            • Submissions in reply for the Annual Wage Review 2020–21
            • Supplementary submissions for the Annual Wage Review 2020–21
          • Timetable for the Annual Wage Review 2020–21
          • Transcripts for the Annual Wage Review 2020–21
        • Annual Wage Review 2019–20
          • Additional material for the Annual Wage Review 2019-20
          • Consultations for the Annual Wage Review 2019-20
          • Correspondence for the Annual Wage Review 2019-20
          • Decisions & statements for the Annual Wage Review 2019-20
          • Determinations for the Annual Wage Review 2019-20
          • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
          • National Minimum Wage Order 2020
          • Notices of listing for the Annual Wage Review 2019-20
          • Research for the Annual Wage Review 2019-20
          • Research proposals for the Annual Wage Review 2019-20
          • Statistical reporting for the Annual Wage Review 2019-20
          • Submissions for the Annual Wage Review 2019-20
            • Initial submissions for the Annual Wage Review 2019-20
            • Submissions in reply for the Annual Wage Review 2019-20
            • Supplementary submissions for the Annual Wage Review 2019-20
          • Timetable for the Annual Wage Review 2019-20
          • Transcripts for the Annual Wage Review 2019-20
        • Annual Wage Review 2018–19
          • Additional material for the Annual Wage Review 2018-19
          • Consultations for the Annual Wage Review 2018-19
          • Correspondence for the Annual Wage Review 2018-19
          • Decisions & statements for the Annual Wage Review 2018-19
          • Determinations for the Annual Wage Review 2018-19
          • National Minimum Wage Order 2019
          • Notices of listing for the Annual Wage Review 2018-19
          • Research for the Annual Wage Review 2018-19
          • Statistical reporting for the Annual Wage Review 2018-19
          • Submissions for the Annual Wage Review 2018-19
            • Initial submissions for the Annual Wage Review 2018-19
            • Submissions in reply for the Annual Wage Review 2018-19
          • Timetable for the Annual Wage Review 2018-19
          • Transcripts for the Annual Wage Review 2018-19
        • Annual wage reviews archive
          • Annual Wage Review 2012–13
      • Application to terminate the Apple Retail Enterprise Agreement 2014
      • Award flexibility – Hospitality and retail sectors
        • Application to vary the Hospitality Award
        • Application to vary the Restaurant Award
        • Application to vary the Retail Award
        • Background material
        • Correspondence
        • Decisions and statements
        • Notices of listing and directions
        • Research and data
        • Submissions
        • Transcript
      • Ballot for withdrawal of ME Division from CFMMEU
      • Ballot for withdrawal of Manufacturing Division from CFMMEU
      • Family and domestic violence leave review
        • Decisions & statements
      • Proposed On Demand Delivery Services Award (Menulog)
      • Review of certain C14 rates in modern awards
      • Superannuation fund reviews
      • Svitzer Australia Pty Limited industrial action
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Research and information
        • Submissions
        • Transcript
      • Previous major cases
        • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
        • Ballot for withdrawal of ME Division from CFMMEU
        • Casual terms award review 2021
          • Background material
          • Correspondence
          • Decisions & statements
          • Determinations
          • Notices of listing & directions
          • Submissions
          • Transcripts
          • All documents
        • Clerks – Private Sector Award – Work from home case
        • Equal Remuneration Case 2010-12
          • Applications
          • Correspondence
          • Decisions & statements
          • Draft orders
          • Exhibits
          • Notices of listing
          • Site Inspections
          • Submissions
          • Timetable
          • Transcripts
        • Equal Remuneration and Work Value Case
          • Applications
          • Correspondence
          • Decisions and statements
          • Legislation
          • Notices of listing and directions
          • Orders
          • Papers
          • Submissions
          • Timetable
          • Transcript
        • Health sector awards – pandemic leave case
          • Applications
          • Correspondence
          • Decisions and statements
          • Determinations
          • Information notes and articles
          • Notices of listing and directions
          • Orders
          • Submissions and witness statements
          • Transcript
        • Modern awards review 2012
          • Awards reviewed 2012
        • Undergraduate qualifications review
    • Case law benchbooks
      • Anti-bullying benchbook
        • Overview of benchbook
        • What is workplace bullying?
        • Who is covered?
          • Definition of ‘worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking?
            • What is a Territory or a Commonwealth place?
            • What is a constitutional corporation?
            • What is the Commonwealth?
        • When is a worker bullied at work?
          • What does ‘at work’ mean?
          • Risk of continued bullying
          • What does ‘Reasonable management action’ mean?
        • Making an application
        • Responding to an application
        • What if the worker has been dismissed etc
        • Commission processes
          • Procedural issues
          • Representation by lawyers and paid agents
        • Evidence
        • What are the outcomes?
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
          • Appeals
          • Role of the Court
      • Enterprise agreements benchbook
        • Overview of benchbook
        • What is an enterprise agreement?
          • Single-enterprise agreement
          • Multi-enterprise agreement
          • Differences between single and multi-enterprise agreements
          • Greenfields agreement
        • Content of an enterprise agreement
          • Permitted matters
          • Coverage
          • Scope – who will be covered?
          • Terms & conditions of employment
          • Base rate of pay
          • Nominal expiry date
          • Mandatory terms
          • Flexibility term
          • Consultation term
          • Dispute settlement term
          • Optional terms
          • Terms that cannot be included
            • Terms that exclude the NES
            • Unlawful terms
            • Designated outworker terms
        • Agreement making process
          • Representation
          • Employees must be notified of their right to be represented
          • Bargaining representatives
        • Bargaining
          • Good faith bargaining
          • How long does bargaining take?
        • Voting
          • Voting process
          • Who can vote?
          • Timeframe for vote
          • Voting methods
          • When is an agreement made?
        • What happens if the parties cannot agree?
        • Making an application
          • Common defects & issues
            • National Employment Standards – common defects & issues
            • Better off overall test – common defects & issues
            • Mandatory terms – common defects & issues
            • Other terms of the agreement
            • Pre-approval requirements – common issues
            • Forms & lodgment – common defects & issues
          • Who must apply
          • Timeframe to apply – within 14 days
          • Material to accompany application
          • Signing an agreement
          • Employer must notify employees
        • Commission approval process
          • Genuine agreement
            • Minor procedural or technical errors
          • Where a scope order is in operation
          • Particular kinds of employees
          • Better off overall test (BOOT)
            • When an agreement passes
            • Classes of employees
            • Which award applies
            • Advice about coverage
            • Loaded rates of pay
          • Public interest test
          • Undertakings
          • Powers of the Commission
        • Associated applications
          • Majority support determinations
          • Authorisations to commence bargaining
            • Single interest employer authorisations
            • Ministerial declaration
            • Low-paid authorisations
          • Scope orders
          • Bargaining orders
          • Serious breach declarations
          • Disputes
          • Workplace determinations
            • Low-paid workplace determinations
            • Industrial action related workplace determinations
            • Bargaining related workplace determinations
          • Role of the Court
          • Appeals
          • Varying enterprise agreements
            • Varying by agreement
            • Ambiguity or uncertainty
            • Casual employee definition and casual conversion provisions
            • Discrimination
          • Terminating enterprise agreements
            • Terminating by agreement
            • After its nominal expiry date
          • Terminating individual agreements
      • General protections benchbook
        • Overview of benchbook
          • When is a person covered by the general protections?
        • What are the general protections?
        • How do the general protections work?
          • Rebuttable presumption as to reason or intent
        • Coverage for general protections
          • What is a constitutionally-covered entity?
          • What is a Territory or a Commonwealth place?
          • What is a trade and commerce employer?
          • What is a Territory employer?
          • What is a national system employer?
        • What if I am not covered by the general protections?
        • What is adverse action?
          • What is dismissal?
          • What is ‘injuring’ the employee in his or her employment?
          • What is altering the position of the employee to the employee’s prejudice?
          • What is discriminating between the employee and other employees of the employer?
          • Threatened action and organisation of action
          • Exclusions
        • Workplace rights – Division 3
          • Meaning of workplace right
          • Coercion
          • Undue influence or pressure
          • Misrepresentations
          • Requiring the use of COVIDSafe
        • Industrial activities – Division 4
          • What are industrial activities?
          • Coercion
          • Misrepresentations
          • Inducements – membership action
        • Other protections – Division 5
          • Discrimination
            • Race
            • Colour
            • Gender identity & sexual orientation
            • Age
            • Physical or mental disability
            • Marital status
            • Family or carer’s responsibilities
            • Pregnancy
            • Religion
            • Political opinion
            • National extraction
            • Social origin
          • Exceptions
          • Temporary absence – illness or injury
          • Bargaining services fees
          • Coverage by particular instruments
          • Coercion – allocation of duties to particular person
        • Sham arrangements – Division 6
          • Misrepresenting employment
          • Dismissing to engage as independent contractor
          • Misrepresentation to engage as independent contractor
        • Making an application
          • Dismissal applications
            • Timeframe for lodgment
            • Late lodgment
          • Non-dismissal applications
          • Other types of applications
            • Multiple actions relating to dismissal
            • Unfair dismissal
            • Unlawful termination
            • Court application (interim injunction)
            • Discrimination
        • Power to dismiss applications
        • Evidence
        • Commission process
          • Conferences & hearings
          • Dealing with different types of general protections disputes
          • Rescheduling or adjourning matters
          • Representation by lawyers and paid agents
          • Bias
        • Outcomes
        • Costs
          • When are costs ordered by the Commission?
          • Costs against representatives
        • Appeals
        • Role of the Court
          • Enforcement of Commission orders
          • Types of order made by the Court
      • Industrial action benchbook
        • What is industrial action?
          • Unprotected industrial action
            • Orders to stop or prevent unprotected industrial action
          • Protected industrial action
            • Immunity
            • Common requirements
            • Employee claim action
            • Employer response action
            • Employee response action
            • Pattern bargaining
        • Taking protected industrial action
          • Protected action ballots
            • Who may apply?
            • Making an application
            • Commission process
            • Varying a protected action ballot order
            • Revoking a protected action ballot order
          • Voting
            • Ballot agents
            • Who may vote – roll of voters
            • Ballot papers
            • Voting procedure
            • Scrutiny of the ballot
            • Results of the ballot
            • When is industrial action authorised?
          • Notice requirements
          • Commencing protected industrial action
        • Payments relating to industrial action
          • Partial work bans
          • Unprotected industrial action – payments
          • Standing down employees
        • Suspension or termination of protected industrial action
          • Powers of the Commission
            • When the Commission may suspend or terminate
            • When the Commission must suspend or terminate
              • Threats to persons or the economy
              • Suspending industrial action
            • Requirements relating to a period of suspension
          • Powers of the Minister
        • Enforcement
        • Appeals
      • Sexual harassment benchbook
        • Overview of benchbook
        • What is sexual harassment?
        • Who is covered by the laws to stop sexual harassment at work?
          • Definition of ‘Worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking (PCBU)?
              • What is a Commonwealth authority?
              • What is a Territory or a Commonwealth place?
              • What is a body corporate incorporated in a Territory?
              • What is the Commonwealth?
        • When is a worker sexually harassed at work?
          • What does ‘at work’ mean?
          • Reasonable belief of bullying or sexual harassment at work
        • Risk of continued sexual harassment
          • Absence of future risk of sexual harassment
          • Change in circumstances
          • Other options for workers who are no longer working for the employer/principal
        • Making an application
          • Responding to an application
        • Commission process – Hearings and conferences
          • Powers of the Commission
          • Procedural issues
          • Representation by lawyers and paid agents
            • Notification of ‘acting for’ a person
            • What is representation?
            • When will permission be granted?
            • Exception – Conference by staff conciliator
            • Representation – Not in a conference or hearing
          • Bias
          • Rescheduling or adjourning matters
        • Evidence
          • Privilege against self-incrimination
        • What are the outcomes?
          • Conciliated outcomes
          • Orders to stop bullying or sexual harassment (or both) at work
          • Considerations
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
            • What are costs?
            • Applying for costs
            • When are costs ordered?
          • Appeals
          • Role of the Court
      • Unfair dismissals benchbook
        • Overview of unfair dismissal
        • Coverage for unfair dismissal
          • Who is protected from unfair dismissal?
          • People excluded from national unfair dismissal laws
            • Independent contractors
            • Labour hire workers
            • Vocational placements & volunteers
            • Public sector employment
          • Constitutional corporations
          • High income threshold
          • Modern award coverage
          • Application of an enterprise agreement
          • What is the minimum period of employment?
            • How do you calculate the minimum period of employment?
            • What is continuous service?
            • What is an excluded period?
          • Bankruptcy
          • Insolvency
        • What is dismissal?
          • When does a dismissal take effect?
          • Terminated at the employer's initiative
          • Forced resignation
          • Demotion
          • Contract for a specified period of time
          • Contract for a specified task
          • Contract for a specified season
          • Training arrangement
          • What is a transfer of employment?
          • Periods of service as a casual employee
          • What is a genuine redundancy?
            • Job no longer required due to changes in operational requirements
            • Consultation obligations
            • Redeployment
          • What is the Small Business Fair Dismissal Code?
        • What makes a dismissal unfair?
          • Valid reason relating to capacity or conduct
            • Capacity
            • Conduct
          • Notification of reason for dismissal
          • Opportunity to respond
          • Unreasonable refusal of a support person
          • Warnings – unsatisfactory performance
          • Size of employer's enterprise & human resources specialists
          • Other relevant matters
        • Making an application
          • Application fee
          • Timeframe for lodgment
          • Extension of time for lodging an application
          • Who is the employer?
          • Multiple actions
          • Discontinuing an application
        • Objecting to an application
        • Commission process – conciliations, hearings and conferences
          • Conciliation
          • Hearings and conferences
          • Preparing for hearings and conferences
          • Representation by lawyers and paid agents
          • Rescheduling or adjourning matters
          • Bias
        • Remedies
          • Reinstatement
            • Order for reinstatement cannot be subject to conditions
            • Order to maintain continuity
            • Order to restore lost pay
          • Compensation
            • Calculating compensation
            • Instalments
            • Mitigation
            • Remuneration
            • Any other matters that the Commission considers relevant
            • Compensation cap
        • Dismissing an application
        • Evidence
        • Costs
          • Costs against representatives
          • Security for costs
        • Appeals
          • Staying decisions
        • Role of the Court
      • JobKeeper disputes benchbook
        • Introduction
          • Overview of the Coronavirus Economic Response provisions in the Fair Work Act
        • JobKeeper enabling directions – general information
          • Service & entitlement accrual while a JobKeeper enabling direction applies
          • When a JobKeeper enabling direction will have no effect
          • Stand downs that are not jobkeeper enabling stand downs
          • Employee requests for secondary employment, training and professional development during a jobkeeper enabling stand down
        • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
          • Directions about duties & location of work
        • Jobkeeper enabling directions – employers previously entitled to jobkeeper payments
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Industrial action benchbook

Threats to persons or the economy

On this page:

  • Introduction
  • Threats to life, personal safety, health or welfare
  • Case examples
  • Threats to the economy
  • Case examples
  • Orders
Content

Introduction

See Fair Work Act s.424

The Commission must make an order suspending or terminating protected industrial action that is being engaged in or is threatened, impending or probable, if satisfied that the protected industrial action has threatened, is threatening or would threaten:

  • to endanger the life, the personal safety or health, or the welfare, of the population or a part of it, or
  • to cause significant damage to the Australian economy or an important part of it.

It has been established that the following terms are to be given their ordinary meanings.[1] The following dictionary definitions have been adopted previously:

Threaten – constitute a threat to, be likely to injure, be a source or harm or danger.[2]

Threat – a declaration of an intention to inflict pain, injury or other punishment.[3]

Related information

  • Suspending industrial action

Threats to life, personal safety, health or welfare

Section 424 of the Fair Work Act states that the Commission must suspend or terminate protected industrial action that is being engaged in or is threatened, impending or probable, if satisfied that the protected industrial action has threatened, is threatening or would threaten:

  • to endanger the life, the personal safety or health, or the welfare, of the population or a part of it, or
  • to cause significant damage to the Australian economy or an important part of it.

It has been established that the following terms are to be given their ordinary meanings.[4] The following dictionary definitions have been adopted previously:

Health – the general condition of the body or mind with reference to soundness or vigour.[5]

Welfare – the state of faring well, well-being.[6]

Has threatened, is threatening or would threaten

The appropriate test is not whether the protected industrial action 'would' endanger, but rather whether it would 'threaten' to endanger.[7]

The simple existence of a threat to safety or health, or welfare, is insufficient, even if it exists as a result of the protected industrial action. The danger must be probable, rather than simply a possible eventuality.[8]

Endanger life, personal safety or health

Conduct that puts a person's physical or mental state at risk of material detriment, or that materially hinders or prevents improvements in a person's poor physical or mental state, may qualify as conduct that endangers personal health or safety.[9]

Even if conduct is not serious enough to endanger life, it might constitute a significant risk to personal safety or health.[10]

The impact of the conduct must be more than merely to cause inconvenience to the persons concerned. It must expose them to danger.[11]

Welfare

The term welfare is not limited to situations where life, personal safety or health is endangered.[12]

Population or part of it

The term 'population' refers to the total number or the body of the inhabitants of Australia.[13] The reference to 'part' of the population should be read as having a more collective meaning than simply 'individuals'.[14]

Case examples

Protected industrial action terminated or suspended

Action threatening to endanger life, etc

Ausgrid and Others v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others [2015] FWC 1600 (Harrison SDP, 13 March 2015).

Facts

The applicants sought the termination or the suspension of protected industrial action which the CEPU and the AMWU, acting as bargaining representatives for their members, had notified. The unions had given notices of intention to take industrial action comprising a four hour stoppage of work.

Ausgrid's electricity network covers about 22,275 square kilometres, supplying electricity to 1.64 million customers, which include residential, large and small businesses, as well as major industry including mining, shipping, tourism, manufacturing and agriculture. All businesses within Sydney's CBD are within the supply area.

Outcome

The Commission was satisfied that it was probable an emergency event or events, such as vehicle impacts and storms, and disconnection and reconnection of customers, would occur during the period of the protected industrial action. The Commission found that the notified action would likely delay the restoration of power in the event of a power interruption. Delays in the restoration of power are such as to threaten to endanger the safety, health and/or welfare of persons impacted by the power interruptions. Orders suspending the protected industrial action were made.

Relevance

The action in this case had the potential to impact a large part of the state of NSW including residential and commercial areas as well as the Sydney CBD. It also threatened to endanger patients in hospitals, nursing homes or facilities with no, or inadequate, back-up power. Some of these patients were on life support.

The Commission commented that s.424(1)(c) is concerned with action that threatens to endanger persons in the manner described and the section does not require a finding that it will endanger such persons in respect of their welfare, health or safety. It may be that, ultimately, no such adverse impact in fact occurs.

Action threatening health and welfare

Monash University v National Tertiary Education Industry Union [2013] FWCFB 5982 (Hatcher VP, Catanzariti VP, Lee C, 26 August 2013).

Facts

The NTEU had sent a 'Notice of Intention to Take Protected Industrial Action' to the University. The Notice did not identify any cessation date for any of the industrial action, meaning that it was indefinite in nature. One of the forms of industrial action was 'a ban on recording, or transmission to the employer, of assessment results, with the exception of results for which an exemption has been granted by the NTEU Exemptions Committee' (the Results Ban).

Outcome

The Full Bench was satisfied that the Results Ban threatened to endanger student health and welfare by heightening student stress and anxiety. The Full Bench found that the indefinite nature of the Results Ban would aggravate its potential and actual effects on students. The Full Bench issued an order suspending protected industrial action in the form of the Results Ban for a period of two weeks.

Relevance

In this case evidence was given by the University's Director of Mental Health (a psychologist) about the vulnerability of university-aged students to mental health disorders as well as the possible impact of the results ban. Her evidence was that one in four young people suffer from a diagnosable mental health disorder in any one year. The university had 13,000 students and this was considered sufficient in number to be characterised as 'part of the population'.

It was admitted that there was no direct evidence of anyone actually suffering harm as a consequence of the ban, however the Full Bench stressed that the section was concerned with threatened endangerment, not actual harm.

Action threatening the personal safety or health or welfare of a part of the population

Victorian Hospitals' Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 (Boulton J, Acton SDP, Lewin C, 15 December 2011), [(2011) 214 IR 148].

Facts

Protected industrial action was being engaged in by the ANF and its members in support of claims being pursued for nurses and midwives employed in the Victorian public health system. The action had the effect of closing, with certain exceptions, one in every three operational beds across the Victorian public health system.

The VHIA, supported by the Government of Victoria, made an application for an order terminating protected industrial action being taken by the ANF in the Victorian public health system. The application was opposed by the ANF and the Health Services Union, submitting that if an order were made, it should be for suspension rather than termination.

Outcome

The Full Bench found that although the industrial action had only been taken over a few days, there was substantial evidence about the serious impact that it had on public health services and on the safety, health and welfare of some patients. The protected industrial action would add extra pressure to a system already under pressure.

The Full Bench was satisfied that the protected industrial action being engaged in by the ANF and its members was threatening or would threaten to endanger the personal safety or health, or the welfare, of people in need of public health care services in Victoria and suspended the protected industrial action for a period of 90 days.

Relevance

The High Court decision in Coal and Allied v AIRC was applied to explain that a careful consideration of the evidence is required in each case before the Commission can be satisfied that an order should be made. In this case there was significant evidence from senior administrators about the detrimental effect that the industrial action was having and was likely to continue to have on the public health system. The action would cause more than just inconvenience to users of the public health system and was found to endanger their safety or health or their welfare.

Protected industrial action NOT terminated or suspended

Action NOT threatening to endanger life, etc

Re KDR Victoria Pty Ltd T/A Yarra Trams [2015] FWC 6282 (Lee C, 9 September 2015).

Facts

An application was lodged by Yarra Trams for an order to terminate protected industrial action that was being taken by the the ARTBIU and its members. The industrial action was for a four hour stoppage of all work commencing at 10am.

Yarra Trams submitted that the industrial action was threatening to endanger the personal safety or health or the welfare of a part of the population of Melbourne who rely on public transport generally and tram services in particular.

Outcome

The Commission held that while the industrial action would undoubtedly have an effect on the travelling public, it was not satisfied that the protected industrial action by the ARTBIU had threatened, was threatening or would threaten to endanger the personal safety or health or the welfare of a part of the population within the meaning of the Fair Work Act. The application was dismissed.

Relevance

Yarra Trams had provided options for passengers to make alternative arrangements for travel using combinations of replacement buses, trains and other modes of transport. The Commission recognised that this would not be as convenient to the passenger if a tram was their preferred mode of travel. However it was not a sufficient basis to establish that the collective welfare was in danger or peril.

Threats to the economy

Section 424 of the Fair Work Act states the Commission must suspend or terminate protected industrial action that is being engaged in or is threatened, impending or probable, if satisfied that the protected industrial action has threatened, is threatening or would threaten:

  • to endanger the life, the personal safety or health, or the welfare, of the population or a part of it, or
  • to cause significant damage to the Australian economy or an important part of it.

Significant damage

Significant is defined as being 'Important, notable; consequential'.[15]

The length of time over which the economic damage is sustained is a relevant consideration.

The Australian economy or an important part of it

Important in this context has been defined based on the dictionary meaning:

  • of much significance or consequence; an important event.
  • mattering much (fol. by to): details important to a fair decision.
  • of more than ordinary title to consideration or notice: an important example.
  • prominent: an important part.
  • of considerable influence or authority, as a person, position, etc.[16]

Case examples

Protected industrial action terminated or suspended

Significant damage to the Australian economy or an important part of it

Minister For Tertiary Education, Skills, Jobs And Workplace Relations [2011] FWAFB 7444 (Giudice J, Watson SDP, Roe C, 31 October 2011).

Facts

The Minister for Tertiary Education, Skills, Jobs and Workplace Relations made an application to Fair Work Australia for the termination of protected industrial action by Qantas and three unions representing Qantas employees. The unions had engaged in protected industrial action in furtherance of their bargaining claims. Qantas planned to take protected industrial action in response, consisting of a lock-out of its workforce and a grounding of its fleet worldwide.

Evidence was given on behalf of the Minister as to the importance of airline passenger and cargo transport to the economy and the effect of the grounding of the Qantas fleet.

Outcome

The Commission found that it was unlikely that the protected industrial action taken by the three unions, even if taken together, threatened to cause significant damage to the tourism and air transport industries. However, the Commission held that the action proposed by Qantas, if taken, threatened to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services.

In determining whether to suspend or terminate the protected industrial action, the Commission held that suspension would not provide sufficient protection against the uncertainty to the particularly vulnerable tourism industry, and for that reason ordered that the industrial action be terminated.

Relevance

It was submitted that the tourism industry, including aviation, contributed approximately 2.6 per cent to GDP and had 500,000 employees. The value of inbound tourism was estimated at $24 billion per year. It was found that the response action by Qantas threatened to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services. The Qantas evidence was that the cost to it alone was $20 million per day. This was held to be significant.

In contrast, the protected industrial action by the unions was estimated to have only cost approximately $70 million.

Protected industrial action NOT terminated or suspended

Significant damage to the Australian economy or an important part of it

BHP Coal Pty Ltd and Another v Construction, Forestry, Mining and Energy Union and Others PR903492 (AIRC, Bacon C, 17 April 2001).

Facts

BHP and its subsidiary, Hay Point Services, applied to the Commission for an order terminating the bargaining period (pursuant to s.170MH of the Workplace Relations Act) because of the significant damage it argued would be caused to the region of 'Central Queensland'.

BHP engaged a professor of economics at the University of Melbourne to provide a report setting out the economic effect of the industrial action.

Outcome

The Commission found that the borders of the 'Central Queensland region' were totally arbitrary, and that there was insufficient material on which to find that the 'Central Queensland region' could be characterised as 'part' of the Australian economy, and therefore could not be considered an 'important part'.

Relevance

The report stated that the effect of the work stoppages to the region was an economic loss of between 3.1 to 3.8 per cent over a two week period. This was not enough to be considered 'significant'. The Commission commented that if the same loss had occurred over a year it may have been significant. The length of time over which the economic loss occurs is a relevant consideration when determining whether a loss is 'significant'.

Orders

The Commission may make an order under s.424:

  • on its own initiative, or
  • on application by any of the following:
    • a bargaining representative for the agreement
    • the Minister
    • if the industrial action is being engaged in in a State that is a referring State as defined in ss.30B or 30L – the Minister of the State who has responsibility for workplace relations matters in the State
    • if the industrial action is being engaged in in a Territory – the Minister of the Territory who has responsibility for workplace relations matters in the Territory,
    • a person prescribed by the Fair Work Regulations.

Under Regulation 3.10 the following persons may apply for an order suspending or terminating protected industrial action for a proposed enterprise agreement:

  • if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is not a referring State as defined in section 30B or 30L of the Act – the Minister of the State who has responsibility for workplace relations matters in the State'
  • an organisation or other person directly affected, or who would be directly affected, by the industrial action other than an employee who will be covered by the proposed enterprise agreement.[17]

Related information

  • Orders to stop or prevent unprotected industrial action

References

Content

[1] Transit Australia Pty Ltd v Transport Workers' Union of Australia [2011] FWA 3410 (Asbury C, 31 May 2011) at para. 8.

[2] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44 (Kaufman SDP, 3 August 2009) at para. 29, [(2009) 187 IR 119]; see also University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 (O'Callaghan SDP, 4 December 2009) at para. 32.

[3] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44 (Kaufman SDP, 3 August 2009) at para. 30, [(2009) 187 IR 119].

[4] Transit Australia Pty Ltd v Transport Workers' Union of Australia [2011] FWA 3410 (Asbury C, 31 May 2011) at para. 8.

[5] University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 (O'Callaghan SDP, 4 December 2009) at para. 35.

[6] State of Victoria – Department of Health and Community Services v Health Services Union of Australia Print L9810 (AIRCFB, McIntyre VP, Williams DP, Hingley C, 3 March 1995) at para. 15.

[7] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44 (Kaufman SDP, 3 August 2009) at para. 29, [(2009) 187 IR 119].

[8] State of Victoria – Department of Human Services v Health Services Union [2012] FWA 8376 (Gregory C, 4 October 2012) at para. 80, [(2012) 225 IR 306].

[9] Victorian Hospitals' Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 (Boulton J, Acton SDP, Lewin C, 15 December 2011) at para. 51, [(2011) 214 IR 148].

[10] ibid.

[11] ibid.

[12] State of Victoria – Department of Health and Community Services v Health Services Union of Australia Print L9810 (AIRCFB, McIntyre VP, Williams DP, Hingley C, 3 March 1995) at para. 15.

[13] Transit Australia Pty Ltd v Transport Workers’ Union of Australia [2011] FWA 3410 (Asbury C, 31 May 2011) at para. 9.

[14] Coal & Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union Print P8382 (AIRCFB, Giudice J, Munro J, Larkin C, 29 January 1998) at p. 20, [(1998) 80 IR 14].

[15] Sucrogen Australia Pty Ltd v The Australian Workers' Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FWA 6192 (Spencer C, 27 August 2010) at para. 10; citing The New Shorter Oxford English Dictionary.

[16] BHP Coal Pty Ltd; Hay Point Services Pty Ltd v Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PR903492 (AIRC, Bacon C, 17 April 2001) at para. 38; citing the Macquarie Dictionary (2nd Revised Edition).

[17] Fair Work Regulations r.3.10.

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Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 01 Jul 2022
Location on last update: https://www.fwc.gov.au/threats-persons-or-economy