Document ID: chunk:federal_register_of_legislation:C2007C00183:clause:13_3:p2
Version: federal_register_of_legislation:C2007C00183
Segment Type: clause
Provision Reference: sch 13 cl 3 (pt 2/2)
Character Range: 900345–902182

fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Note 1: See also subclause (4) which deals with the burden of proof of the exception in subparagraph (h)(i) of this definition.

Note 2: The issue of whether action that is not industrial in character is industrial action was considered by the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others v The Age Company Limited, PR946290. In that case, the Full Bench of the Commission drew a distinction between an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness.

 (2) For the purposes of this Schedule:
 (a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that transitional employees are required to perform in the course of their employment; and
 (b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.

 (3) For the purposes of this clause, a transitional employer locks out transitional employees from their employment if the transitional employer prevents the transitional employees from performing work under their contracts of employment without terminating those contracts (except to the extent that this would be an expansion of the ordinary meaning of that expression).

 (4) Whenever a person seeks to rely on subparagraph (1)(h)(i), that person has the burden of proving that subparagraph (1)(h)(i) applies.

Division 3—Continuing operation of awards