Industrial action is taken by employers or employees to settle a workplace dispute about working conditions. It includes, when employees:
- don't come to work
- fail, or refuse to perform any work at all
- delay or put a ban or limit on the work they do
- are locked out of a workplace by their employer.
We provide general information on industrial action only. For information on taking, suspending and stopping industrial action visit the Fair Work Commission website
When is industrial action protected?
Industrial action can legally be taken when bargaining for a new registered agreement is unsuccessful. This is known as protected industrial action.
Several requirements must be met for industrial action to be protected. These are that:
- the existing agreement has passed its nominal expiry date
- parties have genuinely tried to reach an agreement
- the action is authorised by a protected action ballot
- the notice requirement for action is met
- the action taken is in support of claims about 'permitted matters'
- the action taken is not about unlawful terms
- there is no 'pattern bargaining'.
What can happen when protected industrial action is taken?
Civil action (eg. being sued) can be taken where the industrial action involves or is likely to involve:
- injuring someone
- wilful or reckless property destruction or damage
- unlawfully taking, keeping or using of property
The Fair Work Commission (the Commission) can suspend or end protected industrial action that might:
- cause significant economic harm to the employers or employees covered by the registered agreement
- endanger someone's life, personal safety, health or welfare
- cause significant damage to the Australian economy or an important part of it.
What can't happen when protected industrial action is taken?
When an employee takes part in protected industrial action, an employer must not threaten to dismiss or discriminate against the employee.
Civil action cannot be taken against employers, employees and unions who participate in protected industrial action.
When is industrial action unprotected?
All other industrial action is unlawful, and not protected.
What happens when unprotected industrial action is taken?
The Commission can make an order to stop or prevent unprotected industrial action. The Commission can make this order by itself or through an application.
Employers, employees and bargaining representatives who take unprotected industrial action can face other consequences. For example, being sued for damages for losses suffered as a result of the action, by anyone affected by the action, such as a business that lost money because it couldn't get hold of goods it needed.
Where unprotected industrial action breaches the Fair Work Act 2009, we can also investigate these matters. For example, when prohibited payments are made during industrial action.
Source reference: Fair Work Act 2009 s.406 - 469 and 477
Need help resolving general protections issues?
If you've lost your job, contact the Fair Work Commission (the Commission) first if you think you were sacked because of:
- a reason that is harsh, unjust or unreasonable
- another protected right.
You have 21 days starting from the day after you were dismissed to lodge an application with the Commission. Check the information at the Commission website to find out if you can apply for:
- unfair dismissal (not available if you lost your job because of a genuine Redundancy)
- a general protections dismissal
- unlawful termination.
For other general protections issues:
- consider whether the action taken against you was unlawful after reading the information on this page
- see our Help resolving workplace issues section for practical advice on:
- talking to your employer about fixing the problem
- getting help from us if you still can’t resolve it.
Take general protections issues seriously. Speak with your employee to address the problem after reading the information on this page.
We have resources to help you:
Boosting Apprenticeship Commencements wage subsidy
If an employee has agreed to start an apprenticeship or traineeship with an employer, it’s important the employee is aware of their general protections at work. These rules still apply for the Boosting Apprenticeship Commencements (BAC) wage subsidy, which provides employers with wage subsidies for new apprentices and trainees.
For example, the following rules continue to apply under the BAC wage subsidy:
- an employer can’t force or misrepresent to an employee that they need to start an apprenticeship or traineeship in order to stay employed
- an employer can’t adversely act against an employee (including terminating employment) if they refuse to start an apprenticeship or traineeship.
You can find more information on termination on our Unfair dismissal page.
For more information about the BAC wage subsidy, including eligibility and payment amounts, go to Boosting Apprenticeship Commencements
on the Department of Education, Skills and Employment website.
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