What is industrial action?

Industrial action occurs when employees refuse to perform work at all, ban the performance of all or some work, or perform work in a way that is different to the way it is usually performed, or in a way which limits the performance of work.

Industrial action can include:

  • employees performing work in a way that's different to how it's normally performed
  • employees adopting a practice 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.

Forms of industrial action that are commonly taken by employees include strikes, bans on certain types of work or performing work in a way that's intended to slow down that work.

Industrial action also includes when an employer responds to industrial action by locking out employees from a worksite. But they don't always have the right to do so.

There are two types of industrial action which are relevant to building work:

  • Protected industrial action.
  • Unprotected/unlawful industrial action.

We've outlined these for you below.

Protected industrial action

Generally, industrial action is protected when taken in the following circumstances:

  • A new agreement (that's not a greenfields or multi-enterprise agreement) is being negotiated.
  • The nominal expiry date of any existing agreement (if there is one) has passed.
  • For action by employees, a protected action ballot order has been approved by the FWC and a majority of employees have supported the action through a secret ballot.
  • 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.
  • Any FWC notices or 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 that otherwise complies with the FW Act will no longer be protected industrial action if:

  • any participant is not a protected person
  • the organisers of the action 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
  • an employee who is a bargaining representative for the proposed agreement.

Unprotected/unlawful industrial action

If the industrial 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 industrial 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. You may also be liable to pay damages to compensate for any loss suffered as a result of the action.

Is participating in industrial action compulsory?

No, participating in industrial action (even where the industrial action is protected action) is a matter of choice. It's up to the person to decide whether they want to take part—a person can't be forced to participate.

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.

If you participate in industrial action that's not protected, you may have to personally face the consequences.

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 happens, 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 even if there is no safe work available.

Example: Industrial action

Brad is working on a large commercial construction project and his employment is covered by a current enterprise agreement which has not passed its nominal expiry date. Brad is working on site when a union member tells him to stop work to protest the shop steward’s employment being terminated.

Brad wants to show his support for the shop steward so he stops work for three hours. Brad’s employer deducts four hours from Brad’s pay and Brad isn’t sure why.  

What has happened here?

Brad has participated in unlawful industrial action. The industrial action is not protected because Brad’s employment is covered by a current enterprise agreement. Brad’s employer must deduct a minimum of four hours from Brad’s pay for the day.