Industrial action can either be protected or unprotected.
The concepts of protected action and a limited right to strike within a bargaining period were introduced in the Industrial Relations Reform Act 1993 (Cth). The Workplace Relations Act 1996 (Cth) then introduced prohibitions on industrial action during the life of an agreement and payment during strikes.
The purpose of taking protected industrial action is so that employees or employers can support or advance their claims during bargaining in relation to a proposed enterprise agreement.
The distinction between protected industrial action and unprotected industrial action is important due to the consequences that flow from the classification of the action. Where industrial action is 'protected', a limited immunity applies, meaning that the remedies that might otherwise be sought in relation to the industrial action are generally not available.
Industrial action which is not protected may be stopped or prevented by the Fair Work Commission making orders, and the enforcement of those orders by the Court.
State and federal courts also have powers under statute and the general law to grant remedies in relation to industrial action that is not protected. This benchbook does not address the powers of these courts and instead focuses on the role of the Commission.
See Fair Work Act s.19
Industrial action means action of any of the following kinds:
The term the performance of work is not restricted to how the tasks associated with a particular job are performed. It involves for example when work is performed, where work is performed, how work is performed and the conditions under which work is performed.
Industrial action where there is a failure or refusal by employees to attend for work, or a failure or refusal to perform any work at all by employees who attend for work, is historically known as a strike.
An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Industrial action does not include the following:
The definition of industrial action under the Fair Work Act, is limited to conduct in connection to disputes of a particular kind and with bargaining. Action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
A Full Court of the Federal Court has observed that '[u]ltimately, the question posed by s.19(1) of the FW Act is whether action can be said to be "industrial" in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is "industrial", but it is not determinative'.
Employers have various statutory and common law rights to respond to industrial action by employees and such responses will not constitute industrial action unless the employer's action is a lockout. For example, in particular circumstances an employer may have the right to respond to industrial action by:
 Fair Work Act s.415.
 Explanatory Memorandum to Fair Work Bill 2008 at para. 1637.
 Australian Municipal, Administrative, Clerical and Services Union v Lend Lease  FWC 5676 (Bissett C, 20 August 2014) at para. 23; citing Re Mornington Peninsula Shire Council  FWAFB 4809 (Watson SDP, Kaufman SDP, Gooley C, 22 July 2011) at para. 25, [(2011) 210 IR 419].
 Note to Fair Work Act s.19(1); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited PR946290 (AIRCFB, Giudice J, Harrison SDP, Simmonds C, 11 May 2004) at para. 46, [(2004) 133 IR 197]; see also Police Federation of Australia v Victoria Police/Chief Commissioner of Police  FWCFB 2063 (Smith DP, Gostencnik DP, Johns C, 11 April 2014) at para. 50, [(2014) 243 IR 1]; Australian Capital Territory v Australian Education Union  FWA 3454 (Deegan C, 29 April 2010) at paras 31–32.
 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  FCAFC 25 (6 March 2015) at para. 120.
 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited PR946290 (AIRCFB, Giudice J, Harrison SDP, Simmonds C, 11 May 2004) at para. 44, [(2004) 133 IR 197].