Industrial action can take a number of forms – including strikes, stoppages, work bans and lock-outs. It is always preferable for employers and employees to attempt to settle workplace disputes without resorting to industrial action.
If bargaining for a new enterprise agreement is unsuccessful, protected industrial action may be taken. Protected industrial action can only be taken when it is in pursuit of a proposed enterprise agreement, and the existing enterprise agreement has gone beyond its nominal expiry date.
At least 50% of the eligible employees must vote, and a majority of those must authorise the industrial action in order for it to be protected. Alternatively, it must be in response to industrial action by the employer. An employer can only take protected industrial action in response to employee action.
The significance of industrial action being “protected” is that it provides protection from legal liability, such as being sued or being fined, to those engaged in such action.
However, you will not be protected from any legal liability for any action that has involved or is likely to involve personal injury, or unlawful, wilful or reckless property use or damage.
For industrial action to be protected, your enterprise agreement must have expired, a ballot of employees must have authorised the action and a special notice must be sent to the employer. It all of these steps have been taken then all employees are protected from legal liability.
Employers can take protected industrial action in response to employee industrial action. They can refuse to allow employees attend for work (a lock out). Employees taking protected industrial action are not entitled to be paid for the period of the action.
Examples of industrial action may include:
- when employees don’t come to work or stop work for a period of time
- when employees put a ban on or limit the amount of work or the duties they perform
- when employers lock employees out of a workplace.
Note: Workplace safety is everyone’s responsibility and employees have a right to a safe workplace. Stopping work because of a reasonable concern about an imminent risk to health or safety is not industrial action. However, if the employer gives you alternative duties instead, you must follow the employer direction so long as it is a safe and reasonable direction.
Industrial action is action taken by a worker to try and improve their wages and conditions. Some examples include strike and work-stoppages, go-slows or protests.
Industrial action has been an important tool for workers throughout history, but currently in Australia there are strict rules around the types of industrial action available to workers and when it can be taken legally.
The best way to improve your wages and conditions and make sure you’re protected is to join your union.
The Issue
The right to strike or withdraw your labour is an internationally recognised human right. However, under our laws, strikes can only happen during the period in which a proposed enterprise agreement is being negotiated.
At all other times, they are unlawful and workers and their unions could face legal consequences.
Even during this bargaining period, there are restrictions. Before workers can take a bargaining strike, they must:
- Not be covered by an unexpired enterprise agreement.
- Be in the process of bargaining for an enterprise agreement.
- Apply for a protected action ballot order (which, among other things, involves proving that they are genuinely trying to reach an agreement).
- Hold a secret ballot.
- Give their employer three clear days’ notice of the strike.
And if workers make it that far, employers can retaliate by locking them out without giving notice and for as long as they want.
If a strike happens outside of bargaining then workers and their unions face dire consequences.
If these rules are followed, the industrial action may be classified as ‘protected industrial action’. Except for actions for defamation, workers taking part in protected industrial action are granted immunity from any other action under any State or Territory law (unless the industrial action involves personal injury, willful or reckless destruction or damage to property, or the unlawful taking, keeping or use of property).
In response to a strike that is not protected industrial action, the employer can:
- Seek an order from the Fair Work Commission (FWC) requiring a return to work, or an injunction from Federal and State Courts.
- Discipline workers or sack them.
- Sue unions and workers for contempt of court if orders or injunctions are not followed to the letter.
- Sue the workers and their union under various laws for fines up to $13,320 for workers. and $66,600 for unions.
- Seek compensation against workers and their unions for lost revenue.
Even if the employer doesn’t want to take legal action, government agencies, such as the Fair Work Ombudsman (FWO) and the Australian Building and Construction Commission (ABCC) can.
Our laws haven’t always been this way. For most of the 20th century, there were no fines for workers who took strike action. Today’s laws still protect workers from victimisation for taking protected industrial action and it is illegal to sack someone for participating in protected industrial action.
The International Labour Organisation (ILO) has found on numerous occasions that our protected action laws breached international obligations to protect the right to strike. The ILO has repeatedly emphasised that the ability to go on strike should not only apply during workplace disputes over collective agreements. The right to strike as understood in international law extends to enabling workers to express their dissatisfaction through employee industrial action with economic and social policy matters that affect their interests.
In Australia, today, employee industrial action is hardly ever taken. There may be a right to strike in limited circumstances during bargaining, but in practice there is no right to strike, except in exceptional circumstances.
The best way to stand up for workers’ rights is to join your union and change the rules.
Industrial Action – Frequently Asked Questions
What is industrial action?
Industrial action is a term commonly used to describe any form of protest, work stoppage, or strike undertaken by employees in an attempt to improve their working conditions or wages.
The legal definition of industrial action in the Fair Work Act 2009 relates to:
- conduct by employees and unions that restricts, limits or delays the performance of work;
- conduct by employers that prevents employees from working in accordance with their employment contracts.
There are important legal distinctions between protected industrial action and unprotected industrial action, we explain further below.
Some examples of industrial action include:
- Going on strike
- Work to rule
- Slowdowns
- Refusal to work overtime
Setting up picket lines can also constitute industrial action or have other legal consequences, depending on who is involved and the purpose and effects of the picket.
The purpose of industrial action is to apply pressure to an employer and further the bargaining objectives of the employees . This may be in relation to pay and conditions, job security, or other issues.
In order to be effective, such action must be well-planned and organised. It is also important to have the support of as many employees as possible.
One of the most effective forms of industrial action is a strike. This is where employees refuse to work until their demands are met. A strike can be crippling to a company if it is not prepared for it.
Another form of industrial action is working-to-rule. This is where employees strictly adhere to their contract of employment and do not do any work that is not specified in their contract. This can be just as effective as a strike, but it is often less disruptive.
What are the most common reasons for industrial action?
There are a number of reasons why employees may take industrial action. Protected industrial action can be taken in support of employees bargaining for improved pay and working conditions. Employees may also want to strike in protest over other issues, such as a proposed pay cut, or in an attempt to force their employer to improve safety conditions and overcome workplace disputes. Depending upon the circumstances, such action may not be legally protected. You should rely upon the advice of your union in these cases.
What is protected industrial action?
Industrial action is any form of restriction on the performance of work undertaken by employees in an effort to improve their working conditions or wages.
Protected industrial action refers to a situation where a group of workers have followed all of the required steps under the Fair Work Act 2009 before industrial action is taken.
If industrial action is protected, the employer cannot take adverse action against a worker for taking part in it. Workers are also immune from some civil claims in relation to the strike. However, the employer may be required to withhold payment or part payment of an employee’s wages in relation to the industrial action.
What is unauthorized or unofficial industrial action?
Industrial action that is not authorised by a registered industrial organisation is sometimes called ‘unauthorized’, ‘unofficial’ or ‘wildcat’ industrial action. Such action is often taken in response to an employer’s intention, or decision to change workplace conditions or practices without consulting employees or their representatives.
Taking wildcat industrial action can have serious consequences for employees who take part, such as:
- being disciplined, including being dismissed from employment;
- being fined; and
- having their pay docked.
Therefore, it is important for employees considering taking unofficial action to get advice from their union about the risks involved.
What is unprotected industrial action?
Unprotected industrial action is any form of industrial action that is not protected under the Fair Work Act 2009. This includes industrial action taken without prior notice to the employer and without following the set procedures under the Fair Work Act.
Taking unprotected industrial action can have serious consequences. Employers can take legal action against employees and unions, and employees can be disciplined or dismissed from their jobs.
If you’re considering taking unprotected industrial action, it’s important to get advice from a lawyer or union official first.
Is industrial action legal?
The short answer is yes. Industrial action is legal in Australia. However, there are a number of restrictions and requirements under the Fair Work Act 2009 that must be met before it can be taken and be protected.
Protected industrial action can only be taken by employees as part of their employment relationship with their employer. This means that independent contractors and other third parties cannot take protected industrial action.
Industrial action must also be in accordance with the rules set out in Fair Work Act 2009.
If the rules are not followed, the industrial action may be deemed to be unprotected and the employees involved may be subject to legal action, or may be subject to disciplinary action or dismissal.
What causes industrial action?
Industrial action can occur for a variety of reasons but is most often taken in response to changes in working conditions or pay and benefits. Unfair dismissal, safety concerns, and workloads are also common triggers for industrial action.
When can you take protected industrial action?
There are a range of steps that must be completed before industrial action will be protected. Some of these include:
- You’re a bargaining representative for an enterprise agreement or a proposed enterprise agreement, and
- The action has been authorised through a protected action ballot in accordance with an order of the Fair Work Commission; and
- you’ve given the employer written notice of the industrial action, and
- the protected industrial action is taken in relation to bargaining for the agreement or proposed agreement, and
- it’s not contrary to an order of the Fair Work Commission.
It is important to seek the advice of a lawyer or union official before taking industrial action, as the consequences of not following procedures can be serious.
You can’t take protected industrial action if:
- You’re not a bargaining representative for an enterprise agreement or a proposed enterprise agreement, or
- The action is not taken in relation to bargaining for an enterprise agreement or a proposed enterprise agreement, or
- Your current enterprise agreement has not reached its nominal expiry date, or
- It is contrary to an order of the Fair Work Commission.
Do you get paid while on strike in Australia?
If an employee engages in industrial action (whether it is protected industrial action or not), their employer is required not to make any payment to them for the period of the industrial action. In the case of unprotected industrial action, the employer can withhold at least 4 hours’ pay even if the action was for less than 4 hours.
However, an employer may be required to make payment to an employee taking industrial action if the industrial action was in the form of partial work bans.
Who can participate in protected industrial action?
Under the Fair Work Act 2009, only ’employees’ can take part in protected industrial action. As long as the steps required by the Fair Work Act are complied with, employees, whether they are are covered by a modern Award or Enterprise Agreement or not, can take part in protected industrial action.
Contractors, independent contractors, and other workers who are not employees are not covered by the Fair Work Act 2009 and cannot take part in protected industrial action.
Some State and Territory laws may allow certain types of ‘industrial action’ (such as work bans) to be taken by employees who are not covered by the Fair Work Act 2009 in certain circumstances. For more information about State and Territory laws, contact the industrial relations authority in your state or territory.
Can I go on strike without my union’s authorization?
In order to participate in protected industrial action, you must either be a member of a union that has followed the requirements of the Fair Work Act 2009 and also given notice of the proposed action, or have yourself complied with those requirements. If you act on your own, without your union’s support and without yourself complying with the terms of the Fair Work Act 2009, your action will be unprotected, and could lead to legal action against you or other action being taken.
What is the difference between official and unofficial industrial action?
Official industrial action is that which has been authorised by a relevant union or employer organisation. Unofficial industrial action is typically that which has been organised by employees themselves without the involvement of their employer or union.
The Fair Work Act 2009 provides for what types of industrial action are considered ‘protected’ from employer retribution. In general, industrial action will only be protected if it is being taken to advance employees’ claims in relation to a proposed enterprise agreement.
There are a number of different ways in which an industrial dispute may be resolved, including through negotiation, mediation or arbitration. However, if these methods are unsuccessful, industrial action may be the only way to resolve the issue. Not all industrial action, however, is protected. Unprotected industrial action may result in legal action being taken against you or your union, or in disciplinary action being taken against you.
When can protected industrial action be taken?
All employees in Australia are entitled to take ‘protected’ industrial action, if the procedures under the Fair Work Act 2009 are followed . Employees who take protected industrial action are generally protected from legal action under State and Territory Laws (with some exceptions for action involving conduct that causes personal injury and some conduct in relation to property). Employees who take protected industrial action, such as going on strike, are also safe from dismissal or other adverse action being taken against them by their employer.
However, there are some special rules that apply to employees of ‘essential services’, such as hospitals, airports and energy suppliers. These employees can only take protected industrial action in limited circumstances.
How does industrial action affect businesses?
The effects of industrial action can be far-reaching and often depend on the size and sector of the business in question. For example, a small business may be able to weather a one-day strike by its employees, but a large company may lose millions of dollars if its workers go on strike for an extended period of time.
In some cases, businesses may be able to negotiate with the employees who are taking industrial action, in order to come to a proposed agreement that is satisfactory for both parties. However, this is not always possible, and businesses may find themselves at a standstill until the industrial action is over.
How long can industrial action last?
There is no limit to how long industrial action can last, but it must be ’protected industrial action’ in order to have the protections in the Fair Work Act 2009. The Fair Work Act 2009 sets out rules that must be followed before, during and after taking industrial action.
How do employees prepare for industrial action?
In Australia, unions are legally entitled to take industrial action in order to further their bargaining objectives. This right is enshrined in the Fair Work Act 2009 .
However, there are a number of restrictions and rules that apply to union-initiated industrial action.
For example, the purpose of the action must be to advance claims in relation to an agreement about particular sorts of matters, unions must give employers notice of their intention to take industrial action, and the action must be authorised by a protected action ballot of union members. As a result, certain types of industrial action (such as secondary boycotts and sympathy strikes) are not protected and can lead to legal action being taken against the employees involved and their union.
Looking for more information on industrial action? Talk to the experts at Australian Unions today. By joining your union, you’ll have access to the right information about a fair working life in Australia. Contact us now.