Taking part in industrial action

Before taking part in industrial action, it's essential you make sure that the industrial action is protected. You may personally face consequences if you participate in industrial action that's not protected.

If the industrial action is unlawful, the Fair Work Ombudsman (FWO) can bring action for penalties against employees, employers, employee organisations and their officers who organised or engaged in such action.

Getting paid during an industrial action

If the industrial action is unprotected, the employer:

• must not pay the employee during the period of the industrial action ; and
• must withhold a minimum of 4 hours pay from the employee, even if the period of industrial action was less than 4 hours.

Employers may be subject to legal action and penalties for failing to withhold pay.

If the industrial action is protected, the employer:

• must deduct the employee's pay only for the actual period of the industrial action (the 4-hour rule doesn't apply).

Note: Special provisions apply to partial work bans.

Important! Under the Fair Work Act 2009, an employee or employee organisation must not ask to be paid for a period of industrial action (whether protected or unprotected), and penalties may apply.

When industrial action is unlawful

In addition to industrial action being taken prior to the nominal expiry date of a current agreement, the Fair Work Act also makes it unlawful for:

• employees to take industrial action:
  • because the employer makes a complaint under a workplace law
  • because the employer is an industrial association officer / member
• an industrial association to take industrial action against a person:
  • because the person doesn't take part in industrial action
  • because the person is or isn't a member or officer of an industrial association.

Such action is unprotected, and can lead to fines being imposed.

Do you work in the building and construction industry?

In addition to the requirements in the Fair Work Act set out here, there is specific legislation that deals with this industry - the Building and Construction Industry Improvement Act 2005.

You need to ensure that any industrial action you take in this industry is not unlawful as defined in that Act. Penalties apply for engaging in that unlawful industrial action.