See Fair Work Act s.423
Where the action is employee claim action, the Commission may make an order suspending or terminating the protected industrial action that is being engaged in if satisfied that the action is causing, or threatening to cause, significant economic harm to:
- the employer or any of the employers that will be covered by the proposed enterprise agreement,
- any of the employees who will be covered by the proposed enterprise agreement.
Where the action is employee response action or employer response action, the Commission may suspend or terminate the protected industrial action that is being engaged in if satisfied that the action is causing, or threatening to cause, significant economic harm to any of the employees who will be covered by the proposed enterprise agreement.
The Commission may only be 'satisfied' if its decision to that effect is based upon relevant considerations and the evidence.
In other words, if industrial action is being undertaken by the employer (whether protected or not), the Commission is only required to consider the harm to the employees. This reflects the fact that an employer that has locked out its employees should not then be able to have the employees' protected industrial action terminated based on the significant harm being caused to it.
Relevant factors – significant economic harm
Factors relevant to working out whether the protected industrial action is causing, or threatening to cause, significant economic harm include:
- the source, nature and degree of harm suffered, or likely to be suffered
- the likelihood that the harm will continue to be caused or will be caused
- the capacity of the person to bear the harm
- the views of the person and the bargaining representatives for the agreement
- whether the bargaining representatives for the agreement have met the good faith bargaining requirements and have not contravened any bargaining orders in relation to the agreement, and
- the objective of promoting and facilitating bargaining for the agreement.
If the Commission is considering terminating the protected industrial action, the following will also be relevant:
- whether the bargaining representatives for the agreement are genuinely unable to reach agreement on the terms that should be included in the agreement, and
- whether there is no reasonable prospect of agreement being reached.
If the protected industrial action is threatening to cause significant economic harm, the Commission must be satisfied that the harm is imminent.
The Commission must also be satisfied that:
- the protected industrial action has been engaged in for a protracted period of time, and
- the dispute will not be resolved in the reasonably foreseeable future.
Causing significant economic harm
"…the expression 'significant harm' in s.426(3) should be construed as having a meaning that refers to harm that has an importance or is of such consequence that it is harm above and beyond the sort of loss, inconvenience or delay that is commonly a consequence of industrial action.
In this context, the word 'significant' indicates harm that is exceptional in its character or magnitude when viewed against the sort of harm that might ordinarily be expected to flow from industrial action in a similar context." 
Link to application form
All forms are available on the Forms page of the Commission's website