An employer refused to participate in negotiations with a union for an enterprise agreement. The union’s first application for a protected action ballot order was granted by FWA, but was then overturned by a Full Bench due to a technicality. The union’s second application was granted by FWA and upheld on appeal by a Full Bench. The employer then applied to the Federal Court to quash the decisions of FWA and for the Court to determine the application.
The Court dismissed the application. The Court noted that the employer was proposing that protected action orders ought to be conditional on bargaining having commenced. However, the Court held that there is “simply no warrant” for the Court to read into the provision “words of limitation which do not appear”. The Court found that the union had satisfied the prerequisite of “genuinely trying” to reach an agreement, by writing to the employer seeking to commence bargaining. However, the Court also acknowledged that a “less confrontational “and “more ordered” process was available to the union, by applying for bargaining orders.
J.J. Richards & Sons Pty Ltd v Fair Work Australia  FCAFC 53