Protected, unprotected & unlawful action
Industrial action can be protected, unprotected or unlawful. Each type of action can have different consequences.
Employers and employees can be personally liable for taking part in unlawful industrial action.
Protected industrial action
Protected industrial action is when:
- you are bargaining for a new single-enterprise agreement (that’s not a greenfields agreement)
- the nominal expiry date of an existing agreement has passed
- the Fair work Commission has approved a protected action ballot
- at least 50% of eligible employees vote in the ballot
- there’s a majority vote in favour of the industrial action
- the bargaining representatives are genuinely trying to reach agreement
- the action is not for unlawful terms or part of pattern bargaining or part of a demarcation dispute
- the bargaining representatives have complied with all relevant notice requirements; and
- employees and the bargaining representatives have complied with all Fair work Commission orders.
Employers can only take protected industrial action in response to employee industrial action.
Consequences of protected action
Employers, employees and unions who participate in protected industrial action are protected from civil action being taken against them (eg. being sued).
However, you can still be sued or prosecuted if the industrial action involves or is likely to involve:
- injuring someone
- wilful or reckless property destruction or damage, or
- unlawfully taking, keeping or using of property.
Legal action for defamation can also be brought against an employer, employee or bargaining representative for any actions that occur during protected industrial action.
The Fair work Commission can suspend or end protected industrial action that might:
- cause significant economic harm to the employers or employees covered by the enterprise agreement, or
- endanger someone’s life, personal safety, health or welfare, or
- cause significant damage to the Australian economy or an important part of it.
Unprotected industrial action
Unprotected industrial action is any industrial action that isn’t protected industrial action.
The Fair work Commission must make an order to suspend or stop any unprotected action. See Ending or suspending industrial action for more information.
If the action is also unlawful there may be penalties.
Consequences of unprotected action
Employers, employees and unions who take unprotected industrial action can face consequences including being litigated against for damages associated with any loss caused by their action.
Unprotected industrial action can also be ‘unlawful industrial action’ if it meets the definition below.
Unlawful industrial action
Industrial action is unlawful if it’s engaged in when there’s an enterprise agreement in place that covers the employee, employer or employee organisation that hasn’t passed its nominal expiry date.
The Fair work Commission must suspend or stop any unlawful action. Court orders can also be used to enforce this.
Consequences of unlawful action
If you take part in unlawful industrial action, some individuals or organisations can take court action against you. These individuals or organisations include:
- anyone covered by the enterprise agreement who is affected by the action
- anyone else who is affected by the action (e.g. a business that lost money because it couldn’t get hold of goods it needed)
- the Fair Work Ombudsman (us).
The court can order you to pay either or both:
- compensation for losses
Other types of unlawful industrial action
It’s unlawful to take industrial action before a current agreement has reached its nominal expiry date. It’s also unlawful for:
- employees to take industrial action because the employer:
- exercises a workplace right under a workplace law or workplace instrument
- is an industrial association officer or member
- an industrial association to take industrial action against someone for:
- not taking part in industrial action
- being or not being a member or officer of an industrial association.
There are penalties for these types of unlawful industrial action.
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