Industrial action can be taken by employees or employers:

  • Employees may go on strike (refuse to attend or perform work) or impose work bans (refuse to perform one or more of their normal duties).
  • Employers may lock out their employees (refuse to allow them to work).

The Commission received a total of 989 applications in relation to industrial action in 2013–14. This represents a decrease of 22 per cent from the 2012–13 year, and a decrease of 30 per cent from the 2011–12 year.

Table 18—Industrial action—lodgments
Type of application No. of applications
2011–12 2012–13 2013–14
s.418—Application for an order that industrial action by employees or employers stop etc. 138 168 145
s.419—Application for an order that industrial action by non-national system employees or employers stop etc. 2 2 3
s.423—Application to suspend or terminate protected industrial action—significant economic harm etc. 7 5 1
s.424—Application to suspend or terminate protected industrial action—endangering life etc. 16 11 11
s.425—Application to suspend protected industrial action—cooling off 4 2 6
s.426—Application to suspend protected industrial action—significant harm to third party 0 1 3
s.437—Application for a protected action ballot order 1011 915 627
s.447—Application for variation of protected action ballot order 17 12 12
s.448—Application for revocation of protected action ballot order 57 38 54
s.459—Application to extend the 30-day period in which industrial action is authorised by protected action ballot 156 115 124
s.472—Application for an order relating to certain partial work bans 9 2 3
Total 1417 1271 989

Protected industrial action

Protected industrial action can occur after a list of proposed actions has been authorised by the Commission, then approved by a majority of respondents in a workplace ballot process. This is done as part of bargaining for a new workplace agreement.

The employee bargaining representative must apply to the Commission for an order requiring the ballot to take place. The Commission is required, as far as practicable, to determine the application within two days of it being made.

The Commission received 627 applications for protected ballot orders in the past year, a decrease of 31 per cent on the previous reporting period.

Where protected industrial action is endangering the life, personal safety, health or welfare of the population, or part of it, or causing significant damage to the Australian economy, the Commission must suspend or terminate the action. The Commission must, as far as practicable, determine an application of this nature within five days of it being made, or make an interim order suspending action if this is not possible.

Unprotected industrial action

Industrial action is only protected if it is in relation to bargaining for an agreement.

Where industrial action (or threatened action) is unprotected, an application can be made to the Commission to stop or prevent that industrial action. The Commission is required to determine the application within two days of lodgment or make an interim order stopping the action within two working days.

Dealing with industrial action

The short timeframes for dealing with industrial action applications require the Commission to have processes in place to rapidly consider these matters—particularly in the case of unprotected actions or where protected industrial action is causing or threatening to cause significant economic harm to the parties.

When an urgent application related to industrial action is lodged the Registry contacts the Panel Head’s chambers to alert them of the application so that it can be quickly allocated to a Member. Panel Heads and Members may be contacted out of hours if required to facilitate the rapid handling of a matter.

To further assist with the timely resolution of matters, they may be listed outside of normal business hours, including on weekends. If a matter cannot be resolved within the legislative timeframe, the presiding Member will generally issue an interim order so that the matter can be partly resolved until a final order is issued.

These processes have been a key factor in the Commission consistently meeting our KPI (a median listing time of three days) related to this deliverable. This year the Commission took a median time of two days to list applications relating to industrial action.

For further information on timeliness in relation to applications regarding industrial action see Table 19 and Table 20.

Table 19—Industrial action—all applications, timeliness
Applications KPI Median time (days)
50% of matters 90% of matters
2011–12 2012–13 2013–14 2011–12 2012–13 2013–14
Applications made under ss.418, 419, 423, 424, 425, 426, 437, 447, 448, 459 and 472—lodgment to first listing 3 days 3 3 2 7 5 6
Table 20—Industrial action applications—protected action ballot orders and orders to stop action—timeliness, 2013–14
Type of application Median time (days)
50% of matters 90% of matters
2011–12 2012–13 2013–14 2011–12 2012–13 2013–14
s.418—Application for an order that industrial action by employees or employers stop etc.—lodgment to first hearing 1 1 1 3 2 2
s.437—Application for a protected action ballot order—lodgment to first hearing 3 3 3 7 5 7
s.437—Application for a protected action ballot order—lodgment to determination 4 3 3 7 6 7