Industrial Action

• Industrial action is when employees refuse to perform work that is intended to reduce productivity, or when employers lock out their employees and refusing for them to work. It is generally unlawful and prohibited unless it is protected action.
• For industrial action to be protected, a protected action ballot must be held, following a protected action ballot order by the Fair Work Commission (FWC).
• There are fines and penalties for employees and unions that take unprotected industrial action as it has not been authorised by the Fair Work Commission.

Industrial Action in Australia

Industrial action is when employees refuse to perform work that is intended to reduce productivity, or when employers refrain employees from working. This can be in the form of strikes, stoppages, work bans and lock-outs. Industrial action means action of any of the following kinds:

• (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
• (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
• (c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
• (d) the lockout of employees from their employment by the employer of the employees.

Why is industrial action taken?

Industrial action can be taken for a variety of reasons, including to protest about the actions of others in the workplace, to negotiate workplace bargaining and where there may be a threat to the health and safety of workers and stakeholders, including customers.

Types of Protected Industrial Action

Protected industrial action is industrial action taken for the purpose of supporting or advancing claims about an agreement under the Fair Work Act. Protected industrial action can only be taken in support of bargaining for a proposed agreement.

• Employee claim action
• Employee response action
• Employer response action

Payments for Periods of Industrial Action

The Fair Work Act 2009 provides that during a period of industrial action it is unlawful for:

• an employer to pay an employee, and
• an employee to receive payment from an employer.

In terms of protected and unprotected action:

• (a) Protected action:
  (i) Strike/stoppage. Not paid in respect of the period of action.
  (ii) Partial work bans. The employer must decide in advance and notify employees – will it give full pay; no pay; part pay?
• (b) Unprotected action:
  (i) Minimum reduction of 4 hours pay (or such longer period for which the action is taken).

Key Issues

• The difference between protected and unprotected industrial action is important. Protected industrial action provides protection from legal liability, such as being sued or being fined.
• Even if industrial action is protected, the Fair Work Commission (FWC) has the power to suspend or terminate protected industrial action.
• “Industrial action” can have an expanded view under the Fair Work Act. This can include distributing campaign information and wearing campaign uniforms.
• Industrial action cannot relate to a proposed greenfields agreement or multi-enterprise agreement.

Protected Industrial Action

1. Industrial action will not be protected if taken before the nominal expiry of an enterprise agreement. Protected industrial action can only take place once the nominal expiry date of a Single Enterprise Agreement (SEA) has passed.
2. The action must be about:
   1. matters about the employer’s relationship with its employees or the employees’ organisation (e.g.,. a union)
   2. payroll deductions or
   3. how the agreement will operate.
3. The action must be organised by the employees or their bargaining representative (e.g. the union).
4. Before action is taken, the parties must have genuinely tried to reach an agreement. The law requires at least 50% of employees to vote, and the majority of these employees must authorise the industrial action for it to be protected. The vote is generally conducted by the Australian Electoral Commission.
5. A majority of eligible employees must vote in support of the action through a secret ballot.
6. The employer must receive at least three days’ written notice of the industrial action before it is taken.

Frequently Asked Questions about Industrial Action

Q: Can unions stop negotiating with employers during the industrial action?
A: No. Unions must genuinely try to reach an agreement with the employer at all times.

Q: What is a go-slow action?
A: A ‘go slow’ is where employees deliberately delay their work flow or reduces output to put pressure on the employer.

Q: Are lock-outs legal?
A: A lockout may be ‘protected action’ for the purposes of the Fair Work Act 2009 if it occurs during a bargaining period for an enterprise agreement, and the other appropriate procedures and conditions are adhered to. Lockouts are only available as a response to employee industrial action.

Q: What is secondary industrial action?
A: Also known as sympathy industrial action, this type of industrial action arises when employees strike in support of workers on strike in other organisations.

Q: What is an employee response action?
A: This is industrial action engaged in by an employee who will be covered by the proposed agreement in response to industrial action taken by an employer who will be covered by the agreement.

How can LegalVision help me?

LegalVision provides businesses and individuals with tailored online legal advice, including employment disputes and industrial action advice. If you require any assistance on employment matters, contact LegalVision on 1300 544 755. We have extensive experience in managing responses to unlawful industrial action and ensuring compliance with the Fair Work Act.