Australian law says there are 2 types of industrial action. Protected action is legal and unprotected action is illegal.
When industrial action may happen
A workplace dispute can escalate into industrial action.
A dispute is when one or more parties disagree about something.
In workplaces the parties are usually:
- the employer
- the employees
- the registered organisations that represent them.
Common causes of industrial action are when parties:
- disagree when bargaining for a new enterprise agreement
- think others are behaving unfairly in the workplace
- see a threat to the health and safety of employees.
When employees take industrial action, they may go on strike or impose work bans.
When employers take industrial action, they may lock out their employees.
Protected and unprotected actions
You should know that Australian law divides industrial action into 2 categories:
- protected industrial action
- unprotected industrial action
Protected industrial action
The Fair Work Act 2009 says protected industrial action is legal.
Employees may take protected industrial action when:
- bargaining for a new enterprise agreement fails
- the existing agreement is out-of-date.
To take protected industrial action, employees must apply to us first.
If we approve the application, we will make an order to permit the employees to organise a protected action ballot.
We will also make an order directing all bargaining representatives to attend a compulsory conciliation conference during the ballot period.
The protected action can only go ahead if:
- most voters in the ballot are in favour
- if it is a single-enterprise agreement -- the employer receives at least 3 days written notice before the action
if it is a new multi-enterprise agreement – the employer receives at least 120 hours written notice before the action
- the action starts within 30 days of the ballot result being declared (or a longer period, if we have extended the time).
If an employee bargaining representative doesn’t attend the conference — the employee(s) that they represent will not be able to take protected industrial action.
If any employer bargaining representatives do not attend the conference — the employer cannot take employer response action.
Unprotected industrial action
The Act says that unprotected industrial action is illegal.
Unprotected industrial action is when you act:
- before an agreement’s expiry date
- without a successful ballot
- to include unlawful terms in an agreement
- as part of pattern bargaining.
If you take unprotected action, the law does not protect you from the consequences.
A business may sue you for damages if:
- you took unprotected action
- that action led it to suffer financial losses.
Sometimes we will prevent or stop unprotected action. If we decide to do this, we will make an order the courts can enforce.