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Call for new laws after High Court makes it harder to strike

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A High Court decision placing on onus on unions to abide by all orders from the industrial umpire if they want to use strikes as a bargaining tool has sparked fresh debate about laws governing industrial action.

The High Court on Wednesday held that a union can not take protected strike action for the remainder of an enterprise bargaining period if it breaches a previous order from the Fair Work Commission related to that bargaining.

ACTU Secretary Sally McManus. ACTU Secretary Sally McManus. Photo: AAP

The case decision could expose the Australian Workers Union to substantial damages from past disputes now deemed as unprotected industrial action at Esso’s Longford gas plant in Victoria.

While business groups welcomed the decision, the union movement has used it to press further for changes to the rules of engagement in bargaining.

Australian Council of Trade Unions secretary Sally McManus on Thursday said the decision made it harder to take protected industrial action.

Ms McManus, who recently visited the International Labour Organisation in Brussels said the court decision had put Australia further behind other countries in upholding international law on the right to strike.

She said the decision was “highly significant” in making Australian industrial laws “some of the most aggressive and oppressive in the world”.

“At the moment it is so difficult to take protected action,” she said. “You have to jump through a myriad of hoops and cashed-up employers can use lawyers to make that more difficult.

“What we’ve got through this decision is, even if you make a small mistake and it gets found out years later you can be opened up to being sued by huge multinationals for small work bans.

“We think this shows our industrial laws are fundamentally broken and tips the power even further in favour of employers. There is urgent change that is needed.”

Federal Labor has said it will introduce legislation to reverse the Fair Work Commission’s controversial decision this year to reduce penalty rates and would also intervene to prevent companies from easily terminating enterprise agreements. Most recently, it extended its policy commitment to five days of paid domestic violence leave, to ten days.

Labor’s employment spokesman Brendan O’Connor on Thursday said: “We are carefully considering the High Court case and its implications for collective bargaining”.

The Australian Mines and Metals Association welcomed the High Court ruling as a significant test case.

“This decision shows you don’t get to wreak havoc on a business if you’re not complying with the law,” AMMA’s workplace relations director Amanda Mansini said.

“If the unions want the protection of our laws to organise a strike in support of bargaining claims, then the unions must comply with Australia’s laws until an agreement is struck, not just when it suits them.”

The Australian Industry Group also welcomed the High Court’s decision.

Stephen Smith, head of National Workplace Relations Policy at the Australian Industry Group said it would encourage unions to comply with the law.

“Industrial action can inflict substantial damage upon businesses and can be very harmful for employees,” Mr Smith said.

“Therefore, it is reasonable that unions take care and ensure that they have complied with all the legal requirements before they organise industrial action.

”The requirement that a union must have complied with all orders of the Commission relating to the bargaining, if the union wishes to organise industrial action, has been in the Act in one form or another since 1993. Therefore, the High Court’s decision is not surprising.”

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