Industrial action can take a number of forms - including strikes, work bans and lock-outs. It is always preferable for employers and employees to attempt to settle workplace disputes without resorting to industrial action.
If bargaining for a new enterprise agreement is unsuccessful, protected industrial action may be able to be taken. Protected industrial action can only be taken when it is in pursuit of a proposed enterprise agreement, and the existing enterprise agreement or workplace determination has gone beyond its nominal expiry date.
For the action to be protected, a protected action ballot (following a protected action ballot order by Fair Work Australia) must be held. At least 50% of the eligible employees must vote, and a majority of those must authorise the industrial action in order for it to be protected. Alternatively, it must be in response to industrial action by the employer. An employer can only take protected industrial action in response to employee action.
Importance of protected industrial action
The significance of industrial action being “protected” is that it provides protection from legal liability, such as being sued or being fined, to those engaged in such action.
However, you will not be protected from any legal liability for any action that has involved or is likely to involve personal injury, or unlawful, wilful or reckless property use or damage.
If an existing agreement covers the employees who'll be covered by the new agreement, industrial action will only be protected if the nominal expiry date of the existing agreement has passed.
Employers can only take protected industrial action in response to employee industrial action.
Examples of industrial action may include:
- when employees don't come to work
- when employees put a ban on or limit the amount of work they perform
- when employers lock employees out of a workplace.
Note: Workplace safety is everyone’s responsibility and employees have a right to a safe workplace. Stopping work because of a reasonable concern about an imminent risk to health or safety is not industrial action.
However, the Fair Work Ombudsman may still need to investigate the reasons for a work stoppage to understand if health and safety issues were present.
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