Situations in which boycotts permitted
45DD Situations in which boycotts permitted
Dominant purpose of conduct relates to employment matters—conduct by a person
A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.
Dominant purpose of conduct relates to employment matters—conduct by employee organisation and employees
If:
an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is:
an organisation of employees; or
an officer of an organisation of employees; and
the conduct is only engaged in by the persons covered by paragraph (a); and
the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a);
the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in the conduct.
Dominant purpose of conduct relates to environmental protection or consumer protection
A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if:
the dominant purpose for which the conduct is engaged in is substantially related to environmental protection or consumer protection; and
engaging in the conduct is not industrial action.
If an environmental organisation or a consumer organisation is a body corporate:
it is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption; and
each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.
If an environmental organisation or a consumer organisation is not a body corporate:
it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) (consequently, this exemption does not cover the organisation as such); but
each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.
Meaning of industrial action—basic definition
In subsection (3), industrial action means:
the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
the terms and conditions of the work are prescribed, wholly or partly, by a workplace instrument or an order of an industrial body; or
the work is performed, or the practice is adopted, in connection with an industrial dispute; or
a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by a workplace instrument or by an order of an industrial body; or
a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.
For this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009.
Meaning of industrial action—further clarification
For the purposes of subsection (3):
conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
Subsections (1), (2) and (3) do not protect people not covered by them
In applying subsection 45D(1), 45DA(1) or 45DB(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct.
Defences to contravention of subsection 45DB(1)
In a proceeding under this Act in relation to a contravention of subsection 45DB(1), it is a defence if the defendant proves:
that a notice in respect of the conduct concerned has been duly given to the Commission under subsection 93(1) and the Commission has not given a notice in respect of the conduct under subsection 93(3) or (3A); or
that the dominant purpose for which the defendant engaged in the conduct concerned was to preserve or further a business carried on by him or her.
Each person to prove defence
If:
a person engages in conduct in concert with another person; and
the other person proves a matter specified in paragraph (7)(a) or (b) in respect of that conduct;
in applying subsection 45DB(1) to the first person, ignore the fact that the other person has proved that matter.
Section 415 of the Fair Work Act 2009 limits the right to bring actions under this Act in respect of industrial action that is protected action for the purposes of that section.
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