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.

Conclusion

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. 

Bianca Reynolds

Next Steps

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