Last updated on October 30th, 2023 at 04:30 pm

Australian Government Fair Work Ombudsman – Industrial action

Industrial action

Industrial action is taken by employers or employees to settle a workplace dispute about working conditions. It includes, when employees:

• don’t come to work
• fail, or refuse to perform any work at all
• delay or put a ban or limit on the work they do
• are locked out of a workplace by their employer

When is industrial action protected?

Industrial action can legally be taken when bargaining for a new registered agreement is unsuccessful. This is known as protected industrial action.

Several requirements must be met for industrial action to be protected. These are that:

• the existing agreement has passed its nominal expiry date
• parties have genuinely tried to reach an agreement
• the action is authorised by a protected action ballot
• the notice requirement for action is met
• the action taken is in support of claims about ‘permitted matters’
• the action taken is not about unlawful terms
• there is no ‘pattern bargaining’.

What can happen when protected industrial action is taken?

Civil action (eg. being sued) can be taken where the industrial action involves or is likely to involve:

• injuring someone
• wilful or reckless property destruction or damage
• unlawfully taking, keeping or using of property
• defamation

The Fair Work Commission (the Commission) can suspend or end protected industrial action that might:

• cause significant economic harm to the employers or employees covered by the registered agreement
• endanger someone’s life, personal safety, health or welfare
• cause significant damage to the Australian economy or an important part of it

What can’t happen when protected industrial action is taken?

When an employee takes part in protected industrial action, an employer must not threaten to dismiss or discriminate against the employee.

Civil action cannot be taken against employers, employees and unions who participate in protected industrial action.

When is industrial action unprotected?

All other industrial action is unlawful, and not protected.

What happens when unprotected industrial action is taken?

The Commission can make an order to stop or prevent unprotected industrial action. The Commission can make this order by itself or through an application.

Employers, employees and bargaining representatives who take unprotected industrial action can face other consequences. For example, being sued for damages for losses suffered as a result of the action, by anyone affected by the action, such as a business that lost money because it couldn’t get hold of goods it needed.

Source reference: Fair Work Act 2009 (Cth) sections 406 – 469 and 477

© fairwork.gov.au

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