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FAIR WORK ACT 2009 - SECT 409

Employee claim action

Employee claim action

             (1)  Employee claim action for a proposed enterprise agreement is industrial action that:

                     (a)  is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

                     (b)  is organised or engaged in, against an employer that will be covered by the agreement, by:

                              (i)  a bargaining representative of an employee who will be covered by the agreement; or

                             (ii)  an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

                     (c)  meets the common requirements set out in Subdivision B; and

                     (d)  meets the additional requirements set out in this section.

Protected action ballot is necessary

             (2)  The industrial action must be authorised by a protected action ballot (see Division 8 of this Part) .

Unlawful terms

             (3)  The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining

             (4)   A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

             (5)  The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWC order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

             (6)  If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

Officer of an employee organisation

             (7)  If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.



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