Commentary on provisions of the Act New section 234E: No protection if union fails to take reasonable steps
This new section provides that the union’s protection from tort proceedings (see paragraph 6) is removed if: minimum service regulations are in place in relation to a relevant service; an employer to whom the minimum service regulations applies issues a work notice in accordance with the procedures in the Act; and the union fails to take reasonable steps to ensure that members of the union who are identified in the work notice comply with the work notice. Such compliance by union members would mean not participating in the strike on strike days when those members are required by the work notice to work.
	If an employer does seek damages against a union in relation to a failure by the union to take reasonable steps to ensure a valid work notice is complied with by its members, subsection (2) requires that any damages awarded by the courts may only cover losses incurred as a result of the union failing to comply with the obligation in section 234E(1)(b) to take reasonable steps. In other words, damages may not extend to losses that would have been suffered by the employer anyway.