Industrial action is primarily regulated under the Fair Work Act 2009 (FW Act). But industrial action in relation to building work is subject to more rules under the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act).

Under the BCIIP Act, industrial action that isn’t 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 protected from fines or having legal proceedings brought against them for taking that industrial action.

Broadly, industrial action is protected if:

  • a new agreement (that is not a greenfields or multi-enterprise agreement1) is being negotiated
  • the nominal expiry date of any existing agreement has passed
  • 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
  • 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
  • notice of the intention to take particular industrial action has been given to the employer in accordance with the FW Act and any FWC orders relating to industrial action or bargaining for the agreement have been complied with.

In addition to the requirements in the FW Act for protected industrial action, the BCIIP Act provides that industrial action relating to building work will not be protected (and therefore, will be unlawful) if:

  • it is engaged in or joined by any person who is not a protected person
  • the organisers include one or more people who are not protected 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

Unprotected industrial action in relation to building work is unlawful. 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
  • 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
  • the action by an employee is based on a reasonable concern of the employee about an imminent risk to their 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 that is not a partial work ban, the employer must deduct the employee’s pay for the period of industrial action only. Special rules apply in relation to industrial action which includes a period of overtime.

Unprotected industrial action

When an employee engages in unprotected 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 didn’t engage in four hours of unprotected industrial action. Again, special rules apply in relation to industrial action which includes a period of overtime.

If an employer pays an employee for a period of industrial action in contravention of these requirements, or an employee accepts payment for the period that they are engaged in either form of industrial action in contravention of these requirements, 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 such as 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 can 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?

Contact us directly for more information or advice about your individual circumstances:

  • Hotline: 1800 003 338
  • Email: enquiry [at] abcc.gov.au
  • Website: www.abcc.gov.au

1A greenfields agreement is an enterprise agreement made in relation to a new enterprise of the employer (or employers) before anyone has been hired. This can either be a single enterprise agreement or a multi-enterprise agreement. The parties to a greenfields agreement are the employer (or employers in a multi-enterprise greenfields agreement) and one or more relevant employee associations (usually a trade union).

Factsheet