Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 426

Suspension of protected industrial action

  (1)   The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the requirements set out in this section are met.

Requirement--adverse effect on employers or employees

  (2)   The FWC must be satisfied that the protected industrial action is adversely affecting:

  (a)   the employer, or any of the employers, that will be covered by the agreement; or

  (b)   any of the employees who will be covered by the agreement.

Requirement--significant harm to a third party

  (3)   The FWC must be satisfied that the protected industrial action is threatening to cause significant harm to any person other than:

  (a)   a bargaining representative for the agreement; or

  (b)   an employee who will be covered by the agreement.

  (4)   For the purposes of subsection   (3), the FWC may take into account any matters it considers relevant including the extent to which the protected industrial action threatens to:

  (a)   damage the ongoing viability of an enterprise carried on by the person; or

  (b)   disrupt the supply of goods or services to an enterprise carried on by the person; or

  (c)   reduce the person's capacity to fulfil a contractual obligation; or

  (d)   cause other economic loss to the person.

Requirement--suspension is appropriate

  (5)   The FWC must be satisfied that the suspension is appropriate taking into account the following:

  (a)   whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

  (b)   any other matters that the FWC considers relevant.

Order may only be made on application by certain persons

  (6)   The FWC may make the order only on application by:

  (a)   an organisation, person or body directly affected by the protected industrial action other than:

  (i)   a bargaining representative for the agreement; or

  (ii)   an employee who will be covered by the agreement; or

  (b)   the Minister; or

  (ba)   if the industrial action is being engaged in in a State that is a referring State as defined in section   30B or 30L--the Minister of the State who has responsibility for workplace relations matters in the State; or

  (bb)   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; or

  (c)   a person prescribed by the regulations.