In Boral Resources v AWU FWA dismissed an unlawful industrial action application by the employer as employees did not engage in any unlawful action.
The union notified the employer of the intention to take protected industrial action by way of a 24 hour stoppage and the employer put in place defensive measures to prepare for the stoppage. The employer cancelled deliveries for the proposed period of stoppage. The employees did not engage in the protected industrial action, gave notice that the action would not be taken the day before it was intended to happen and the employer, in a novel approach, sought an order to prevent unprotected industrial action.
The application was made based on the fact the employer had put in place measures to deal with the stoppage and by the employees not engaging in the proposed strike and attending for work they were not working in their customary manner. The union argued any deviation from work practices was caused by the company.
SDP Harrison dismissed the application, not being persuaded the prerequisites for making the application had been met, that employees had not engaged in unlawful industrial action by not taking the protected action per the notice issued.
This case presents a novel approach by the employer. The application was unsuccessful as the employees were under no obligation to carry out their intention to undertake the strike, and had not engaged in any unlawful action by presenting for work. The measures taken by the employer in anticipation of the strike were of the employers own initiative. It is unfortunate that in trying to protect the business the employer did not anticipate the employees would in fact work. SDP Harrison hinted that a good faith bargaining order may have been a more appropriate application as the employees had not engaged in unprotected industrial action by not engaging in the proposed strike.