Strike pay in the building and construction industry

The prohibition on the payment of strike pay under the Fair Work Act 2009 also applies under the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act).

Who can be held liable for penalties for unlawful strike payments?

Both the employer who makes unlawful strike payments and the employee who accepts them can be liable for penalties.

What should an employer do when employees engage in industrial action relating to building work?

If an employee engages in unprotected industrial action, an employer must deduct the appropriate amount of pay 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.

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 may give the employees a partial work ban notice that contains details of the proportion of the reduction in payment. Alternatively, the employer may give notice that no payment will be made to employees during the partial work ban. The notice must further provide that the employer will not accept any work from the employee until they resume normal duties.

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 penalties can a court impose on those who make unlawful strike payments?

Under the BCIIP Act, penalties may be imposed of up to:

  • $210,000 in respect of strike payments made by a body corporate;
  • $12,600 in respect of strike payments by or to an individual.

Who can apply for penalties in relation to strike payments?

An Australian Building and Construction Inspector.

Can unions or union officials make demands for strike pay?

No, it is unlawful to make a claim for strike pay.

Who can be held liable for unlawful claims for strike pay?

Unions, union officials and union members are liable to civil penalties if they claim strike pay from an employer.

Similarly, employees who accept a payment from an employer or ask an employer to pay strike pay are also liable to civil penalties.

What penalties can a court impose on those making unlawful claims?

Penalties of up to:

  • $210,000 for claims by a body corporate;
  • $12,600 for claims by an individual.

Additionally:

  • compensation to the employer as the court thinks appropriate;
  • injunctions and other orders to stop the breach or remedy its effects.

Who can apply for penalties in connection with claims for strike pay?

Either of the following people:

  • an employer;
  • an Australian Building and Construction Inspector.

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Need more information?

For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry [at] abcc.gov.au.