Your employees can only go on strike under very limited circumstances – when bargaining for an enterprise agreement.  Otherwise, employees cannot just go on strike when they are unhappy with working conditions.

The term for a legal strike is ‘protected industrial action’.

What is protected industrial action under the Fair Work Act?

Protected industrial action limits the time when a worker can go on strike or take other sorts of industrial action.

Industrial action will either be protected or unprotected under the Fair Work Act.

Protected industrial action occurs when:

  • The bargaining period for a new single-enterprise agreement begins;
  • The date of the relevant agreement has expired;
  • The Fair Work Commission approves a majority employee vote to take industrial action;
  • Those involved in the bargaining process, such as unions or employee representatives, are ‘genuinely trying to reach agreement’;
  • The industrial action does not relate to unlawful terms in a proposed enterprise agreement.

What does it mean to take ‘protected’ industrial action?

When workers go on strike, they are actually being ‘protected’ from any civil action being taken against them because of any damage or contract breaches they may cause by not being at work.

Nonetheless, a person can still be sued if they take industrial action and cause/are likely to cause:

  • An injury to somebody;
  • Destruction of property;
  • Stealing/taking property.

Industrial action is not limited to strikes – it also includes go-slows and picketing.

What if workers take unprotected industrial action?

If an employee goes on strike outside of any of these specific reasons then they are no longer legally protected. If your business is affected by the action taken you can apply to a court for compensation.  Consider speaking to a business lawyer as you may be awarded compensation for loss or the offending employees might be fined.  You should, however, always be wary about firing someone for going on strike.

Can an employer take industrial action?

Yes, it’s called a ‘lock-out’.  The most obvious example is when Qantas locked out its employees during the bargaining period in 2013.

Almost identical rules apply to employers when they take industrial action as those which apply to employees.  You must also follow good faith bargaining principles.  Lock-outs are rare and considered to be a last resort.

Adverse action

Adverse action is unlawful under the Fair Work Act.  This action includes dismissing somebody, not employing somebody, altering an employee’s position to their disadvantage, discriminating against somebody or injuring them in the course of their employment.

An area of frequent litigation involving adverse action is action against an employee because they are engaging in protected industrial activity.  Another area of frequent litigation involving adverse action is dismissing an employee simply because they are temporarily absent from work due to injury or illness.

If any of these things happen to your business then seek advice before taking any action against, or making an adverse decision in respect of, an employee.

Do I have to pay employees if they go strike?

No.  You have a common law right not to pay an employee who goes on strike and this will not constitute adverse action.

Conclusion

If you’re running a small business it’s unlikely your employees will every go on strike. If you do find yourself in such a situation it’s important that you seek specialist legal advice immediately.

Lachlan McKnight

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