The prohibition on the payment of strike pay under the Fair Work Act 2009 (FW Act) 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. So too can a union, or an officer or member of a union, who asks an employer to make such a payment.

What should an employer do when employees engage in unprotected industrial action?

If an employee engages in unprotected industrial action in relation to building work, 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.

What about protected industrial action?

Where employees engage in protected industrial action that is not a partial work ban in relation to building work, the employer must deduct pay for the exact period of action.

Partial work bans

A partial work ban is any industrial action that is not a failure or refusal by an employee to attend for work, or to perform work, or is not an overtime ban.

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 containing details of the proportion of the reduction in pay.

Alternatively, the employer may give notice that no payment will be made to employees during the partial work ban. The notice must also state that the employer will not accept any work from the employee until they resume normal duties.

The rules about partial work bans do not apply to unprotected industrial action.

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 (ABC Inspector) can apply for penalties in respect of an alleged contravention of the strike pay provisions. An employer may also apply for a penalty in respect of a contravention by an employee.

Can unions or union officials make demands for strike pay?

No, it’s 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.

The Court may make any other order it considers appropriate if it is satisfied that a person has contravened, or proposes to contravene, the strike pay provisions. For example, a Court may order an injunction to prevent, stop or remedy the effects of a contravention or it may award compensation.

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