Reading time: 3 minutes

Industrial action can take many forms. Employees can choose to go on strike or refuse to perform all of their normal duties. For example, employees postpone or limit work, fail to perform work duties, refuse to do overtime, or don’t come to work at all. Employees can also engage in protected industrial action when you are negotiating an enterprise agreement. As an employer, it’s then important to know what you can do to protect your business in these circumstances.

Actions you can take

As an employer, there are some things you can and cannot do when your employees take industrial action.

You may be able to lawfully dismiss your employees without repercussions if they are participating in an unprotected action, provided the dismissal is fair and occurs during or after the action. You can find the requirements for what is considered to be a protected industrial action on the Fair Work Australia.

If, however, your employees are taking part in a protected action, and you dismiss them for participating within 12 weeks after the action, then the employees could have a claim for unfair dismissal. For protected industrial actions, employees have to provide you with written notice of what kind of action they will take and when it will start. They must give you at least three days notice, and it must be done through a protected action ballot order approved by the Fair Work Commission.

Other actions you can take can be withholding pay for any period an employee doesn’t work during the action or employing temporary workers to cover the period of the action.

Legal options

There are also legal options you can consider when dealing with employees taking industrial action.

Protected Industrial Action

If the industrial action is protected, you can apply to have the Fair Work Commission suspend or terminate the action. This application can be made when the industrial action threatens life, safety, health or welfare of the public or it could significantly damage the economy. It also must be likely to cause significant financial harm to the employer or employees covered by the agreement.

Unprotected Industrial Action

If an action is unprotected, the Fair Work Commission can make an order to stop it, when it is already occurring, or can prevent an impending action from occurring. As the employer, you would need to provide sufficient evidence before applying for this to be considered.

You may also be able to get an injunction or an interim injunction preventing your employees from taking or continuing any unauthorised action. You would need to show the following:

  • That you would suffer more than your employees if the action goes ahead, 
  • That a monetary value would not be adequate if the action went ahead, and 
  • That there is a serious issue to be tried. 

You will not, however, be able to get an injunction to compel your employees to start working again.


Becoming involved in an industrial action is a difficult time for both employers and employees. It is a serious matter that can greatly impact your business and it is strongly recommended that employers seek legal advice as soon as the issue arises. LegalVision’s specialist employment lawyers can help assess the situation and provide you with up-to-date advice on the actions you can take to ensure your business runs as smoothly as possible. 


Corporate Governance 101: Responsibilities for New Directors

Friday 13 May | 11:00 - 11:45am

If you are a new company director, join our free webinar to understand your legal compliance obligations. Register today.
Register Now

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer