ASC Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

ASC Pty Ltd applied to the Fair Work Commission for relief from protected industrial action by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The union had notified the protected action but had not yet commenced it. ASC sought to suspend or terminate the protected action, stop what it claimed was unprotected action, and obtain bargaining orders. The union opposed the relief sought by ASC, arguing that the Commission lacked the power to make orders in relation to industrial action that had not yet been taken.

The Commission found that the dispute concerned the interpretation of section 425 of the Fair Work Act 2009, which outlines the circumstances under which the Commission may make orders in relation to industrial action. The central issue was whether the term "being engaged in" in section 425(1)(a) required the industrial action to have already commenced or could also apply to industrial action that had been notified but not yet taken. The Commission concluded that the section required the industrial action to have already commenced, as it could not make orders in relation to action that had not yet begun. The Commission also found that the union's actions that ASC characterised as unprotected were in fact protected action, as they fell within the definition in section 354 of the Act.

Accordingly, the Commission held that it did not have the power to make orders in relation to the industrial action that had been notified but not yet taken, and the applications were adjourned. The Commission found that the union's actions ASC characterised as unprotected were in fact protected action, and therefore the application to stop the unprotected action was dismissed. The application for bargaining orders was also adjourned, as the Commission could not make such orders in relation to industrial action that had not yet commenced.