There is a difference between protected, unprotected and unlawful industrial action.
Employers and employees should be aware that they may be personally liable for taking part in unlawful industrial action, which is a breach of the Fair Work Act 2009.
Protected industrial action
Certain types of industrial action are protected. Protected industrial action is when:
- a new agreement (that's not a greenfields or multi-enterprise agreement) is being negotiated
- the nominal expiry date of any existing agreement has passed
- for action by employees, a protected action ballot order has been approved by Fair Work Australia and the industrial action has been authorised by a secret ballot of employees
- the bargaining representatives are genuinely trying to reach agreement, and are not taking action in relation to unlawful terms or as part of pattern bargaining
- all relevant notices and Fair Work Australia orders relating to industrial action or bargaining for the agreement have been complied with
Fair Work Australia can make orders to suspend (and in some instances terminate) protected industrial action if it threatens imminent and significant harm to the economy or threatens the personal safety of participants or third parties.
Contraventions of these types of Fair Work Australia Orders are not subject to fines and other civil remedy provisions and ordinarily are not investigated and enforced by the Fair Work Ombudsman. However, such contraventions may leave parties exposed to civil action, such as being sued, by other affected parties.
Possible outcomes of protected action
Employers, employees and industrial associations who take protected industrial action are protected from any civil action being launched against them, such as being sued, for taking the protected industrial action (unless it involves personal injury, property destruction or unlawful taking or use of property).
Similarly, the Fair Work Ombudsman cannot litigate and seek penalties against the parties for taking protected industrial action.
Unprotected industrial action
Unprotected industrial action is:
- organising or engaging in any action that does not meet the definition of protected industrial action
When industrial action is unprotected, Fair Work Australia must make an order to suspend or stop the action. In certain circumstances the unprotected industrial action can also be unlawful and subject to penalties.
Possible outcomes of unprotected action
Employers, employees and industrial associations who take unprotected industrial action can face significant consequences, including being litigated against by other persons for damages associated with any loss that their action causes.
Not all unprotected industrial action contravenes the civil remedy provisions under the Fair Work Act. Where unprotected industrial action contravenes a civil remedy provision (i.e. it is unlawful industrial action as discussed below) the Fair Work Ombudsman can litigate and seek penalties against the employees, employers, employee organisations, or officers of employee organisations who have organised or engaged in the unlawful industrial action.
Unlawful industrial action
Unlawful industrial action is:
- organising or engaging in unprotected industrial action before an agreement’s nominal expiry date has passed.
Fair Work Australia must suspend or stop the action and court injunctions are also available.
Possible outcomes of unlawful action
Individuals or organisations who take unlawful industrial action can face significant personal consequences from both:
- employers, employees and employee organisations covered by the enterprise agreement who are affected by the unlawful industrial action
- outside parties who are affected by the unlawful industrial action (such as a business that suffered a financial loss as they could not receive necessary goods or services due to the unlawful industrial action).
Both these parties can make an application to the courts against those individuals or organisations who organised or engaged in the unlawful industrial action. These applications can seek court orders that:
- compensate them for any loss suffered because of the unlawful industrial action.
- impose a financial penalty on parties who organised or engaged in unlawful industrial action.
The Fair Work Ombudsman can also litigate against employers, employees, employee organisations and their officers who have organised or engaged in unlawful industrial action for financial penalties.
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