In the building industry, it is illegal for employers to pay employees, and employees to accept payment, for taking unlawful strike action.
When can employees be paid legally for a strike?
Employees can only be paid legally if the strike is based on a reasonable concern by the employees about an imminent risk to their health and safety or if the employer authorised or agreed to the strike in writing in advance.
What should an employer do when employees engage in building industrial action?
An employer must deduct the following amount from the employee’s pay. If the duration of the industrial action is:
- less than four hours, deduct four hours pay
- more than four hours, deduct pay for the duration of the industrial action.
Where employees engage in protected industrial action the employer must deduct payment for the actual period of action.
What about Partial Work Bans?
If an employee engages in a partial work ban that is protected industrial action the employer may deduct a proportion of the employee's pay. The Fair Work Regulations 2009 specify a method for determining the proportion. The employer is not required to make a deduction. The rules about proportionate deduction do not apply if the partial work ban is unprotected industrial action. In that case, the four hour rule would apply.
What are the maximum penalties for paying or receiving strike pay?
- 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 the breach or remedy its effects.