The Australian Mines and Metals Association has lodged an appeal against the decision, which employers feared gave unions a shortcut to strike action.
The association's chief executive, Steve Knott, said the ruling would allow a union to bring a workplace to a standstill despite representing a minority of employees.
"This position goes against everything the resource sector was led to believe by the government in relation to how the laws would operate once they were passed,'' he said.
"Unless overturned there will be serious consequences for Australian employers.''
But ACTU secretary Jeff Lawrence said today that the company at the centre of the dispute - waste management firm JJ Richards and Sons - had refused to bargain in good faith.
"Fair Work Australia's decision is completely in line with the intent of the Fair Work Act, in that it ensures employees have a voice in their workplace,'' he said.
"If an employer refuses to bargain or recognise the legitimate claims of workers, then employees must have the option of exercising their right to strike.
"Any further restrictions on this right would be a dangerous development that unions will vigorously oppose.''
In November, the tribunal upheld an application by the Transport Workers Union for a protected-action ballot in relation to workers employed at J.J. Richards & Sons.
The union had written to the company's Sydney operations manager advising that the employees had requested the union initiate negotiations for an enterprise agreement in NSW.
JJR wrote to the union saying the company declined to enter into discussions to negotiate an agreement. ``At this time, the company is of the belief that the award, legislative protections and individual benefits afforded by the company are sufficient,'' it wrote.
At a subsequent hearing, JJR argued that protected industrial action was only available to the parties during the bargaining process, and, by virtue of its refusal to enter talks, bargaining had not begun. It also argued that the claim had been brought prematurely as the company had not been told what the union might want to include in the agreement.
The tribunal ruled that the preconditions that JJR asserted as necessary to grant the protected action were not supported by the Fair Work Act.
While it was clear that bargaining had not started because JJR had refused to engage with the union, the question for decision was whether the union, not the company, was genuinely trying to reach an agreement.
The tribunal backed the TWU submission that it was ``antithetical'' to the scheme of the act to argue that employees could not take protected action until the employer agreed to bargain.
Mr Knott said a union being able to initiate and take strike action against the wishes of the majority of the workforce is an undemocratic exercise which was never countenanced in the drafting of the Act.
"Resource sector employers respect the wishes of their workforce but do not want to be subject to damaging industrial action by the actions of a minority of workers who don't represent the majority views of the workforce.'' he said.
TWU federal secretary Tony Sheldon slammed the appeal. ``One of the most well-financed employer associations in the country is taking on a couple of dozen waste workers in western Sydney,'' he said.
"These employees work in the most dirty and dangerous industry in Australia and have the right to bargain for a better future for them and their families. If they were to succeed, there would be no need for any employer to bargain with its workforce in this country. It would make Mugabe's regime in Zimbabwe look like a CWA cake stall - full of sugar and cream, but Australian workers and their families will be left with nothing but crumbs.''
Meanwhile, the tribunal has found that TNT Express engaged in "capricious and unfair conduct'' following industrial action taken by the TWU in support of a pay claim.
The tribunal found the company's conduct undermined freedom of association or collective bargaining. However, bargaining orders were not issued against the company.
View The Australian article here
