Industrial action in the building industry is categorised by strikes, work bans or work stoppages by employees or employers locking employees out.
When is industrial action unlawful?
Industrial action is unlawful if it is 'industrially-motivated’, ‘constitutionally-connected’ and not ‘excluded action’.
What is ‘industrially-motivated’ action?
‘Industrially-motivated’ action is industrial action motivated by one of the following purposes:
- supporting or advancing claims against, or by, an employer in respect of the employment of employees of that employer
- advancing industrial objectives of an industrial association
- disrupting the performance of work.
What is ‘constitutionally-connected’ action?
‘Constitutionally-connected’ action is building industrial action that satisfies at least one of the following conditions, namely that the action:
- is taken by an organisation such as a union
- is taken by a constitutional corporation, or adversely affects a constitutional corporation as a building industry participant
- relates to work that is regulated by a Commonwealth industrial instrument
- relates to the bargaining or proposed bargaining for, or the making or proposed making of, an enterprise agreement
- occurs in a territory or Commonwealth place.
What is ‘excluded’ industrial action?
‘Excluded’ industrial action is action that is protected under the Fair Work Act 2009. Industrial action protected under state and territory laws is NOT excluded. It should be noted that there are strict limitations as to what is ‘excluded’ industrial action. Employers and employees should seek advice or they may expose themselves to financial penalties.
Some exemptions apply to action that is not protected, but is still lawful. If the action is authorised by an employer in writing before it takes place or the action was based on a reasonable concern of an imminent risk to health and safety, it is considered lawful.
What about picketing and blockading?
Picketing or blockading is not regarded as building industrial action. However, failure to observe proper standards of conduct when taking such action could expose a person to penalties under other laws.
What are the maximum penalties for taking unlawful industrial action?
- up to $110,000 for a body corporate or $22,000 for an individual
- a court may also order compensation to be paid or issue an injunction to stop industrial action from occurring.