Industrial action is behaviour or actions that disrupt or stop the performance of work.

Industrial action is defined in the Fair Work Act 2009 to include the following:

  • the performance of work by an employee in a manner that is different from how the work is customarily performed;
  • the adoption of a practice that restricts, limits or delays the performance of work;
  • a ban, limitation or restriction on the performance or acceptance of work;
  • a failure or refusal to attend for work or perform work.

To be lawful, industrial action must be “protected”, for the purpose of the Fair Work Act 2009. Protected industrial action can only occur to support bargaining for a proposed enterprise agreement, once the current enterprise agreement has passed its nominal expiry date.

Once bargaining for a new agreement has commenced, employees or their union may apply to the Fair Work Commission (“FWC”) for a protected action ballot. The FWC will generally grant the application if it is satisfied that the union has been genuinely trying to reach agreement with the employer, and the other requirements for protected action have been met. If the application is approved by FWC, eligible workers will vote on the proposed action, and will be entitled to take the industrial action identified in the protected action ballot application, if there is a majority vote in support of it.

Employers have the ability to take a number of lawful responses to protected industrial action (for example a lockout), depending on whether the industrial action is a partial work ban, withdrawal of labour (i.e. strike) or an overtime ban.

An employer may also make an application to the FWC requesting that the industrial action stop on the grounds that it is not protected industrial action. For example, if the employer can demonstrate that the union has not been genuinely trying to reach agreement or the industrial action has or may occur before the nominal expiry date of the agreement. The FWC may also suspend or terminate protected industrial action that is causing, or may cause, significant economic harm to the employer and employees who will be covered by the agreement.

We can assist your business to understand its options when industrial action is occurring, or is likely to occur. We can prepare applications in response to unprotected industrial action, and represent you in the Fair Work Commission.