Your workers might decide to take industrial action, such as strikes or work slowdowns, to resolve workplace disputes regarding work conditions. Your workers might go on strike by withholding some or all of their work, while employers may restrict employees from entering the workplace. However, strikes are typically only acceptable under specific conditions, such as failed negotiation attempts for an agreement. Within legal rules, we refer to such actions as ‘protected industrial action’. This article will explain industrial actions that may arise in the workplace.
Protected vs. Unprotected Industrial Action
| Type | Description |
| Protected | The Fair Work Commission approves protected industrial action, providing employees with protection against threats, dismissal, or discrimination by the employer. |
| Unprotected | The Fair Work Commission can stop or end industrial action not approved by it through an order. |
Protected Industrial Action
| Definition | Protected industrial action, allowed by the Fair Work Act during the bargaining period for a new workplace agreement. It provides workers with legal consequences for actions like strikes during this period. |
| Conditions for Occurrence | Protected industrial actions occur when the bargaining period for a new agreement begins, the date of the relevant agreement has expired, the Fair Work Commission approves a majority employee vote, the involved parties are genuinely trying to reach an agreement, or the action does not relate to unlawful terms in a proposed agreement. |
| Initiation Process | A bargaining representation must take an application to the Fair Work Commission for a protected action ballot order. They must give their employer written notice before taking any action. |
| Limits | Despite protection, you can be sued if the action causes or is likely to cause injury to somebody, property destruction, or property theft. Industrial action is not limited to strikes – it also includes: go-slows; and picketing |
| Authority Intervention | The Fair Work Commission can stop protected industrial action if it may cause significant economic harm, endanger lives, or damage the Australian economy. |
Unprotected Industrial Action
Your workers might go on strike for reasons not covered by specific legal protections, and such actions are called unprotected industrial action. In such cases, your employees lose their legal protection and may face fines or legal consequences. Those participating can be liable for damages resulting from their actions. The Fair Work Commission has the authority to intervene and issue orders to stop or prevent such actions.
Adverse Action
Under the Fair Work Act, taking adverse action against your employees is illegal. Adverse actions include:
dismissing somebody;
not employing somebody;
changing an employee’s position to their disadvantage;
discriminating against somebody; or
injuring them in the course of their employment.
A typical scenario involves adverse action taken against employees engaging in protected industrial activities or those absent due to injury or illness. The Fair Work Act disallows such actions, and employers found guilty may face consequences. Before making any decisions affecting employees, it is essential to understand your obligations and potential risks under the law.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
Employers are prohibited from paying workers who go on strikes, except in certain exceptions like partial work bans. In addition, employers can take industrial action, known as a ‘lock-out,’ under specific circumstances, but this should be a last resort measure. Employers should seek legal guidance if facing disputes related to industrial or adverse actions to ensure compliance and protect business interests.
If you have any questions about industrial or adverse actions, our experienced employment lawyers can assist you as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and provide legal assistance. Call us today on 1300 544 755 or visit our membership page.
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