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FAIR WORK ACT 2009 - SECT 423

FWC may suspend or terminate protected industrial action--significant economic harm etc.

Suspension or termination of protected industrial action

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

Requirement--significant economic harm

             (2)  If the protected industrial action is employee claim action, the FWC must be satisfied that the action is causing, or is threatening to cause, significant economic harm to:

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

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

             (3)  If the protected industrial action is:

                     (a)  employee response action; or

                     (b)  employer response action;

the FWC must be satisfied that the action is causing, or is threatening to cause, significant economic harm to any of the employees who will be covered by the agreement.

             (4)  For the purposes of subsections (2) and (3), the factors relevant to working out whether protected industrial action is causing, or is threatening to cause, significant economic harm to a person referred to in those subsections, include the following:

                     (a)  the source, nature and degree of harm suffered or likely to be suffered;

                     (b)  the likelihood that the harm will continue to be caused or will be caused;

                     (c)  the capacity of the person to bear the harm;

                     (d)  the views of the person and the bargaining representatives for the agreement;

                     (e)  whether the bargaining representatives for the agreement have met the good faith bargaining requirements and have not contravened any bargaining orders in relation to the agreement;

                      (f)  if the FWC is considering terminating the protected industrial action:

                              (i)  whether the bargaining representatives for the agreement are genuinely unable to reach agreement on the terms that should be included in the agreement; and

                             (ii)  whether there is no reasonable prospect of agreement being reached;

                     (g)  the objective of promoting and facilitating bargaining for the agreement.

Requirement--harm is imminent

             (5)  If the protected industrial action is threatening to cause significant economic harm as referred to in subsection (2) or (3), the FWC must be satisfied that the harm is imminent.

Requirement--protracted action etc.

             (6)  The FWC must be satisfied that:

                     (a)  the protected industrial action has been engaged in for a protracted period of time; and

                     (b)  the dispute will not be resolved in the reasonably foreseeable future.

Order may be made on own initiative or on application

             (7)  The FWC may make the order:

                     (a)  on its own initiative; or

                     (b)  on application by any of the following:

                              (i)  a bargaining representative for the agreement;

                             (ii)  the Minister;

                           (iia)  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;

                           (iib)  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;

                            (iii)  a person prescribed by the regulations.



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