Industrial action

Industrial action can take several forms. For employees, this is usually going on strike (refusing to attend or perform work) or imposing work bans (refusing to perform all their normal duties).

Examples of industrial action

• Working a different way to how a job is usually performed
• Practices that result in a restriction, limitation or delay in performing work
• A ban, limitation or restriction on work performance or accepting work
• Failing or refusing to attend or perform work.

Safety stoppages

If an employee refuses to perform work due to a reasonable concern for their immediate health or safety due to an imminent risk it isn't deemed to be taking industrial action. However, the employee mustn’t unreasonably fail to comply with your direction to perform other work that is safe – whether it’s at their usual workplace or another workplace.

Protected industrial action

Employees and employers can only take protected industrial action when they are negotiating on a proposed enterprise agreement.  Industrial action is only protected if:

• it is action taken by employees (or their bargaining representatives) to support claims in relation to a proposed enterprise agreement (employee claim action) or
• it is action taken by employers or employees in response to industrial action taken by the other party (employer or employee response action), and
• the action meets the common and additional requirements for protection, which include:
  • not taking action before the nominal expiry date of a registered agreement
  • parties genuinely trying to reach agreement
  • observing the notice requirements set out below
  • complying with any relevant orders or declarations, including an order made by the Fair Work Commission (the Commission) directing bargaining representatives to attend a mediation or conciliation conference
  • not taking action in relation to a demarcation dispute (employee claim or response action)
  • not taking action in relation to unlawful terms or as part of pattern bargaining (for employee claim action only)
  • authorisation by secret ballot (for employee claim action only).

Unprotected industrial action

An employee who participates in unlawful action that contravenes an order of the FWC or isn’t carried out in accordance with the Fair Work Act, is taking unprotected industrial action and may be exposed to liability.

Strike pay

It’s unlawful for you to pay wages (strike pay) to employees for a period of unprotected industrial action, under the Fair Work Act 2009.

You can only pay employees if the stoppage or industrial action has been authorised by you in writing in advance, or is taken in response to an imminent risk to their health or safety.

If you want help responding to industrial activity, or need us to represent you at the FWC, contact us.