Industrial action is the refusal by employees to perform work or the performance of work in a manner that is intended to reduce productivity in a workplace. In many circumstances, industrial action is unlawful in Australia.
Industrial action can include the following actions:
employees performing work in a manner that is different to how it is normally performed
employees adopting a practise that restricts, limits or delays the performance of work
a ban, limitation or restriction by employees on performing or accepting work
a failure or refusal by employees to attend work or perform any work
the lockout of employees from their employment by their employer
Common forms of industrial action taken by employees include strikes, bans on certain types of work or performing work in a way that is intended to slow down that work.
An employer may respond to industrial action by locking out employees from a worksite.
1. Protected industrial action
Generally when action is taken in the following circumstances:
- a new agreement (that is not a greenfields or multi-enterprise agreement) 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
- all relevant notices and FWC orders relating to industrial action or bargaining for the agreement have been complied with
Individuals and bodies corporate are immune from liability under State or Territory law when taking part in protected industrial action unless that action is likely to involve personal injury or destruction of or damage to property or unlawful taking, keeping or use of property.
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 if:
- it is engaged in in concert with any person who is not a protected person; or
- the organisers include any person who is not a protected person.
A “protected person” is limited to an employee association (and its officers) that is a bargaining representative for the proposed agreement, a member of such an association employed by the employer who will be covered by the proposed agreement, and an employee who is a bargaining representative for the proposed agreement.
2. Unprotected industrial action / Unlawful industrial action
If the action does not fall within the definition of protected industrial action, it will be considered unprotected and will not be immune from liability under State or Territory law.
Further, if the action is in relation to building work, unprotected industrial action will be considered unlawful industrial action. Organising or engaging in unlawful industrial action may result in penalties of up to $42,000 for an individual, or $210,000 for a body corporate, and liability to pay damages as compensation for any loss suffered as a result of the action.
Is participating in industrial action compulsory?
Participating in industrial action is a matter of choice. It is up to the person to decide whether or not they want to take part – a person cannot be forced into participating.
Before taking part in industrial action, it's essential to make sure that the industrial action is protected and that only protected persons engage in or organise the action. Otherwise a person may personally face consequences if they participate in industrial action that's not protected.
What about stopping work due to health and safety risks?
Employees have the right to stop work if they have a reasonable concern about an imminent risk to their health and safety. If this occurs, employees must follow any reasonable direction of their employer to perform other work that is safe and appropriate for them.
Employers are required to continue paying their employees if there is no safe work available.
Need more information?
For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry [at] abcc.gov.au