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.