Last updated on October 30th, 2023 at 04:28 pm

Australian Government Fair Work Ombudsman – Resolving issues, disputes and dismissals

Industrial action

Types of industrial action

Industrial action can be taken by employees or employers.

Employees may go on strike (refusing to attend or perform work) or impose work bans (refusing to perform one or more of their normal duties).

Employers may lock out their employees (refusing to allow them to work)

Why industrial action is taken

Industrial action is taken for a variety of reasons including;

• as part of the workplace bargaining process
• to protest about the actions of others in the workplace
• where there is a possible threat to the health and safety of workers

Protected & unprotected industrial action

Protected industrial action can occur after a list of proposed actions has been authorised by the Commission, then approved by a majority of voters in a workplace ballot process.

This is done as part of the bargaining for a new workplace agreement.

Unprotected industrial action is industrial action that has not been authorised by the Commission.

Payments relating to 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.

There is an exception for partial work bans

Rights & obligations

Overview

When bargaining for a new enterprise agreement, the use of industrial action has been formalised in order to aid the negotiation process. Part of that formalisation involves specific obligations on the bargaining parties.

Protected action ballots

In addition to basic workplace rights and obligations there are certain rights and obligations that must be met in order for industrial action to be protected industrial action.

These are:

• bargaining in good faith is a primary obligation on all involved in the bargaining process, and
• ensuring the representational rights of the employees.

Resolving issues at the workplace

Overview

Using a dispute resolution process at the workplace can help to resolve disputes before they escalate.

Awards & agreements

Dispute settlement clauses appear in all modern awards and enterprise agreements.

The dispute resolution process set out in the award or agreement can be used as a basic guide for any type of dispute. They provide a step by step process to help employees and employers resolve disputes in the workplace.

If these steps have not helped resolve the dispute, and the dispute is directly related to the terms and conditions set out in the award or agreement, then you can apply to the Fair Work Commission for help.

Bargaining for a new enterprise agreement

Bargaining for a new enterprise agreement requires the bargaining representatives to bargain in good faith. The Fair Work Act 2009 sets out the requirements that must be met:

• attend and participate in meetings at reasonable times
• timely disclosure of relevant information that is not confidential or commercially sensitive
• timely response to proposals made by other bargaining representatives
• give genuine consideration to the proposals of other bargaining representatives and give reasons for the responses to those proposals
• hold back from capricious (a sudden change of mind without reason) or unfair conduct that undermines freedom of association or collective bargaining
• recognise and bargain with the other bargaining representatives for the agreement.

If the process fails to produce agreement between the bargaining parties then a bargaining representative can apply to the Commission for a protected action ballot.

Resolving issues at the Commission

If you have not been able to resolve a dispute at the workplace, check other alternatives before deciding to take industrial action. Unprotected industrial action is unlawful and can lead to fines being issued by the Federal Circuit Court or Federal Court.

Depending on the type of dispute, you may be able to get help from the Fair Work Commission.

If the dispute is in relation to bargaining for a proposed enterprise agreement then the employees may be able to have a protected action ballot and commence a period of protected industrial action in support of their claims.

If the dispute is about the terms and conditions of the award or agreement then the dispute settling clause of your award or enterprise agreement may allow a dispute to be brought to the Commission.

If the dispute relates to major changes in the workplace, then the mandatory consultation term of your enterprise agreement may allow a dispute to be brought to the Commission for resolution.

Protected action ballots

When is a protected action ballot required?

A protected action ballot to authorise industrial action must be undertaken before industrial action can be lawfully taken, except where the action is in response to industrial action by the other party in enterprise bargaining.

Protected action ballots will normally be conducted by the Australian Electoral Commission (AEC).

What has to occur for a protected action ballot to be conducted?

A protected action ballot will only be conducted if the Fair Work Commission makes a protected action ballot order as a result of a protected action ballot application being made.

An application for ballot must:

• be made by one or more bargaining representatives of an employee who will be covered by a proposed enterprise agreement which is not a greenfields or multi-enterprise agreement
• be made no more than 30 days before the nominal expiry date of any existing agreement
• if the applicant wishes someone other than the AEC to conduct the ballot (called a ballot agent), specify the name of that person

In considering whether or not to order a protected action ballot, the Commission must be satisfied that the bargaining representative(s) of the employees seeking the ballot have been genuinely trying to reach agreement.

If the Commission grants the application, the order will include details of:

• the name of each applicant for the order
• the group(s) of employees who are to be balloted
• the date the ballot closes
• the question(s) to be put (including the nature of the proposed industrial action)

Who can vote in the ballot?

All employees who:

• will be covered by the proposed enterprise agreement
• were represented by a bargaining representative who applied for the ballot order, and
• are included in the group of employees specified in the ballot order

When is a ballot successful?

Industrial action is authorised by a ballot if:

• at least 50 per cent of those on the voting roll participated in the ballot, and
• more than 50 per cent of votes cast were in favour of the industrial action.

Note:

To be protected action, the industrial action must commence no more than 30 days after the ballot is declared, unless that time is extended by the Commission.

Who pays the costs of holding a ballot?

The Commonwealth pays the cost if the ballot is conducted by the AEC.

Applicants for a protected action ballot, who use a ballot agent other than the AEC, are liable for the full cost of holding the ballot, whether or not the ballot is completed.

Ballot results

Under the Fair Work Act 2009, the Commission is required to publish the results of protected action ballots on its website (or by some other means), as soon as practicable after being informed of them.

Industrial action

What is involved in taking protected industrial action?

In the case of employees, a protected action ballot to authorise the industrial action is required before industrial action can be taken.

Before the industrial action begins, written notice must be given to the other side of the negotiations.

Unless the industrial action is in response to industrial action taken by the other side, at least three days’ notice must be given. The written notice must state the nature of the intended action and the day it will begin.

Suspension or termination of protected industrial action

The Fair Work Commission may suspend or terminate industrial action even if it is protected in certain circumstances.

These circumstances include where the industrial action is causing significant economic harm to the employer or employers who would be covered by the agreement and/or the employees who would be covered by the agreement.

The Commission may also suspend or terminate industrial action where it threatens to endanger the life, personal safety, health or welfare of the population or of part of it, or to cause significant damage to the economy or an important part of it.

The Commission may also suspend protected industrial action to allow a cooling off period which is threatening to cause significant harm to a third party.

Orders to stop or prevent unprotected industrial action

Industrial action is only protected if it is in relation to bargaining for an agreement.

An application to stop or prevent industrial action must be granted by the Commission if the industrial action is unprotected.

Such an application should be heard and determined within two working days.

An order to stop or prevent industrial action can be enforced in the courts

Right of entry

Introduction

When there is a dispute arising from the use or operation of a right of entry permit issued by the Fair Work Commission, the Commission can deal with the dispute by:

• mediation
• conciliation, or
• arbitration

Who can apply

An application can be made by:

• the permit holder
• the permit holder’s organisation
• an employer, or
• the occupier of the premises.

If necessary, the Commission can initiate the process.

• Outcome of application

The outcome of an application can be:

• orders issued
• recommendations made, or
• an opinion expressed in order to resolve the dispute.

Check an entry permit

Search for or check an entry permit by union or holder name.

Workplace determinations

Overview

In certain circumstances, the Fair Work Commission may make one of the following types of workplace determinations:

• industrial action related workplace determinations
• bargaining related workplace determinations, or
• low-paid workplace determinations

The factors that the Commission must take into account in deciding which terms to include in a workplace determination include the following:

• the merits of the case
• the interests of the employers and employees
• how productivity might be improved in the enterprise or enterprises concerned
• the public interest, and
• the conduct of the bargaining representatives

Industrial action related workplace determinations

The Commission must make an industrial action related workplace determination if:

• a termination of industrial action instrument is made, and
• the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining after the end of the post-industrial action negotiating period.

Bargaining related workplace determinations

The Commission must make a bargaining related workplace determination if:

•a serious breach declaration is made, and

•the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining after the end of the post-declaration negotiating period.

Low-paid workplace determinations

Bargaining representatives for a proposed agreement, or a union that is entitled to represent the industrial interests of an employee who performs work under the proposed agreement, may apply for a low-paid authorisation in relation to a proposed multi-enterprise agreement.

In deciding whether to make such an authorisation, the Commission must take into account a range of factors, including whether doing so would assist low-paid employees who have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level.

If a low-paid authorisation is in place and one or more of those bargaining are unable to reach agreement, the Commission may make a low-paid workplace determination.

Operation of workplace determinations

A workplace determination operates from the day on which it is made.

A workplace determination ceases to operate on the earlier of the following days:

• the day on which a termination of the determination comes into operation
• the day on which an enterprise agreement or another workplace determination that covers the employee in relation to the same employment comes into operation, or
• the day on which there is no employee to whom the agreement applies.

The Fair Work Act applies to a workplace determination as if it were an enterprise agreement.

© fairwork.gov.au

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