Industrial action is primarily regulated under the Fair Work Act 2009 (FW Act). However, industrial action in relation to building work is subject to additional rules under the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act).
Under the BCIIP Act, industrial action that is not protected is considered unlawful industrial action.
Protected industrial action
For industrial action to be protected, it must meet certain conditions. When employees, employers and industrial associations take part in protected industrial action they are immune from receiving fines or having legal proceedings brought against them for taking lawful industrial action.
Broadly, industrial action is protected if:
- a new agreement (that is not a greenfields or multi-enterprise agreement) is being negotiated; and
- the nominal expiry date of any existing agreement has passed; and
- for action by employees, a protected action ballot order has been approved by the Fair Work Commission (FWC) and the industrial action has been authorised by a secret ballot of employees; and
- the bargaining representatives are genuinely trying to reach agreement, and are not taking action in relation to unlawful terms or as part of pattern bargaining; and
- all relevant notices and FWC orders relating to industrial action or bargaining for the agreement have been complied with.
If it does not meet the required conditions, industrial action in relation to building work will be unlawful industrial action.
Additional restrictions apply to industrial action in relation to building work. Protected industrial action which otherwise complies with the FW Act will no longer be protected industrial action (and thereby become unlawful industrial action) if:
- it is engaged in in concert with any person who is not a protected person; or
- the organisers include one or more persons who are not protected persons for the action.
A "protected person" is limited to an employee organisation that is a bargaining representative for the proposed agreement, a member of such an organisation employed by the employer who will be covered by the proposed agreement, an officer or employee of such an organisation acting in that capacity, and an employee who is a bargaining representative for the proposed agreement.
Unlawful industrial action
Industrial action in relation to building work is unlawful if it does not come under the definition of protected industrial action, as above. Employees, employers and industrial associations that participate in unlawful industrial action may face penalties (up to $42,000 for an individual, and up to $210,000 for a body corporate), and may also be liable to pay compensation for damages suffered as a result of the action.
Action that is not industrial action
Under the BCIIP Act, action in relation to building work is not industrial action if:
- the action by employees is authorised or agreed to, in advance and in writing, by their employer;
- the action by an employer is authorised or agreed to, in advance and in writing, by or on behalf of its employees; or
- the action by an employee is based on a reasonable concern of the employee about an imminent risk to his or her health or safety, and the employee has not unreasonably failed to comply with a direction to perform other available work, whether at the same or another workplace, that was safe and appropriate to perform.
Pay during industrial action
Protected industrial action
When an employee engages in protected industrial action, the employer must deduct the employee’s pay for the period of industrial action only.
Unprotected industrial action
When an employee engages in unprotected industrial action (i.e. action that is not protected industrial action), the employer must deduct the amount of pay that relates to the duration of the industrial action taken by the employee. The minimum deduction is four hours of pay from the employee’s wages, even if the employee did not engage in four hours of unprotected industrial action.
If an employer pays an employee for a period of industrial action or an employee accepts payment for the period that they are engaged in either form of industrial action, they may be liable to pay penalties of up to $12,600 for individuals or $210,000 for bodies corporate. Similarly if a building association (e.g. a union) asks that an employee be paid for a period of industrial action, they may be liable to pay a penalty of up to $210,000 under the BCIIP Act.
Employer response action
Employer response action is when an employer responds to protected industrial action taken by employees. Employers may respond to protected industrial action by locking their employees out of a workplace. Broadly, their action will be protected industrial action if it meets the relevant requirements set out above, and if it was taken in response to industrial action taken by their employees.
Need more information?
For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry [at] abcc.gov.au.