Industrial Action

Industrial action is when:

• employees fail or refuse to perform work; or 
• an employer locks their employees out of their workplace.

It has the goal of settling a workplace dispute.

Industrial Action in Australia

Industrial action occurs when:

• employees fail or refuse to perform work; or 
• when an employer locks their employees out of their workplace.

It has the goal of settling a workplace dispute. This can be in the form of:

• strikes;
• stoppages;
• work bans; and 
• lock-outs.

It means action of any of the following kinds:

1. 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;
2. 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;
3. 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;
4. the lockout of employees from their employment by the employer of the employees.

Why is Industrial Action Taken?

Employees or employers can take industrial action for a variety of reasons. This includes:

• 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 action employees take for the purpose of supporting or advancing claims about an agreement under the Fair Work Act. Employees can only take protected action  in support of bargaining for a proposed agreement.

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
• 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 four hours pay (or such longer period for which the employee is taking action).

Key Issues

• The difference between protected and unprotected industrial action is important. Protected action provides protection from legal liability, such as receiving a fine or facing legal action.
• 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.
• The action cannot relate to a proposed greenfields agreement or multi-enterprise agreement.

Protected 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 the employees take it.

Adverse Action and Industrial Action

Adverse action is any action that the Fair Work Act 2009 prohibits due to it occurring for particular reasons, such as:

• discrimination; or 
• because an employee exercised a workplace right. 

The Fair Work Act 2009 prohibits employers taking adverse action against an employee because they engaged in industrial action. If it is determined that an industrial activity was a ‘substantial and operative factor’ in the employer’s reasons for taking an adverse action, then you will have contravened the Fair Work Act.

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.