About industrial action
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What is industrial action?
Industrial action can take a variety of forms. For example, employees may go on strike (that is, refusing to attend or perform work) or impose work bans (that is, refusing to perform all their normal duties). Employers may lock out their employees (that is, refusing to allow them to work or to pay them).
What is protected industrial action?
In general, for industrial action to be lawful it must be protected industrial action.
The requirements for taking protected industrial action include:
- an existing agreement has passed its nominal expiry date
- the industrial action is in support of a new enterprise agreement (or is in response to industrial action by the other side)
- the industrial action does not involve pattern bargaining
- in the case of employees initiating action in support of claims, Fair Work Australia has granted an order for a protected action ballot to be held and the ballot has endorsed action being taken
- the required notice has been given to the other party
- the bargaining representative(s) organising the action, or representing the employees who are taking or organising the action, must be genuinely trying to reach agreement.
Industrial action will not be protected if it:
- is taken while the bargaining period has been suspended
- relates significantly to a demarcation dispute
- is in support of claims for a multi-enterprise or greenfields agreement
- is in support of the inclusion of claims that cannot be lawfully included in an agreement (these are known as unlawful terms), or
- contravenes any orders made by Fair Work Australia.
What is Fair Work Australia's role?
Fair Work Australia plays a role in ensuring that the bargaining process, and any associated industrial action, occurs according to law. Bargaining representatives of employees wishing to take industrial action to support their claims, must first seek an order from Fair Work Australia for a protected action ballot authorising the industrial action.
Fair Work Australia has the power to suspend or terminate protected industrial action. Fair Work Australia may also make orders to stop or prevent unprotected industrial action. Such orders are enforceable in the courts.
