Ewin Hannan, Industrial editor
Employers will seek to overturn the ruling that opens the door to workers taking industrial action before workplace bargaining has started.
The Australian Mines and Metals Association has lodged an appeal against the decision, which employers feared gave unions a shortcut to strike action.
In November, the tribunal upheld an application by the Transport Workers Union for a protected-action ballot in relation to workers employed at waste management company J.J. Richards & Sons.
The union had written to the company's Sydney operations manager advising that the employees had requested the union initiate negotiations for an enterprise agreement in NSW.
JJR wrote to the union saying the company declined to enter into discussions to negotiate an agreement. "At this time, the company is of the belief that the award, legislative protections and individual benefits afforded by the company are sufficient," it wrote.
At a subsequent hearing, JJR argued that protected industrial action was only available to the parties during the bargaining process, and, by virtue of its refusal to enter talks, bargaining had not begun. It also argued that the claim had been brought prematurely as the company had not been told what the union might want to include in the agreement.
The tribunal ruled that the preconditions that JJR asserted as necessary to grant the protected action were not supported by the Fair Work Act.
While it was clear that bargaining had not started because JJR had refused to engage with the union, the question for decision was whether the union, not the company, was genuinely trying to reach an agreement.
The tribunal backed the TWU submission that it was "antithetical" to the scheme of the act to argue that employees could not take protected action until the employer agreed to bargain.
TWU federal secretary Tony Sheldon slammed the appeal. "One of the most well-financed employer associations in the country is taking on a couple of dozen waste workers in western Sydney," he said.
"These employees work in the most dirty and dangerous industry in Australia and have the right to bargain for a better future for them and their families. If they were to succeed, there would be no need for any employer to bargain with its workforce in this country. It would make Mugabe's regime in Zimbabwe look like a CWA cake stall - full of sugar and cream, but Australian workers and their families will be left with nothing but crumbs."
Meanwhile, the tribunal has found that TNT Express engaged in "capricious and unfair conduct" following industrial action taken by the TWU in support of a pay claim.
The tribunal found the company's conduct undermined freedom of association or collective bargaining. However, bargaining orders were not issued against the company.
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