Industrial action and protests
Industrial action is taken by employers or employees to settle a workplace dispute about working conditions.
Employees and employers have rights and obligations when employees want to attend protests during work time.
On this page:
Industrial action 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.
Protected and unprotected industrial action
There are two different types of industrial action:
- protected industrial action
- unprotected industrial action.
Industrial action can legally be taken when bargaining for a new registered agreement is unsuccessful. This is known as protected industrial action.
To take protected industrial action, a party must make an application to the Fair Work Commission (the Commission) first.
There are several requirements that have to 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 (for example, 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 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 can’t be taken against employers, employees and unions for participating in protected industrial action unless it involves or is likely to involve activities like the ones mentioned in the section above.
Industrial action that isn’t protected is unlawful. This is known as unprotected industrial action.
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, or by anyone affected by the action, such as a business that lost money because it couldn't get hold of goods it needed.
Where an employee has engaged in unprotected industrial action, their employer has to deduct a minimum of 4 hours’ wages from the employee’s pay, even if the unprotected industrial action was less than 4 hours. For more information, see Payment during industrial action.
Employees engaging in unprotected industrial action may also face civil penalties if they engage in industrial action between the approval and nominal expiry date of an enterprise agreement that applies to them.
As part of our functions under the Fair Work Act, we monitor and investigate potential non-compliance with national workplace laws, including allegations of people engaging in or organising unprotected industrial action.
If an employee wants to attend a protest during work time, and has requested annual leave to do this, their employer can’t unreasonably refuse to approve the leave. For example, their employer can’t refuse the annual leave request just because they don’t agree with the protest the employee wants to attend.
Employees may have access to other types of leave in their workplace that they could use to attend a protest, for example in their award or enterprise agreement.
Employers who unreasonably refuse to approve leave for an employee to attend a protest may also breach other provisions of the Fair Work Act, known as General protections. Under these provisions, employers can’t take adverse action against an employee (for example, treating them less favourably than they otherwise would have) because:
- they have a workplace right (such as a right to take leave)
- they have exercised or propose to exercise a workplace right (such as requesting to take leave they’re entitled to)
- of a protected attribute, including their political opinion
- they engage, have engaged, or propose to engage in certain industrial activities including:
- organising or promoting lawful activities for or on behalf of a union or employer association
- encouraging or participating in a lawful activity organised or promoted by a union or employer association
- representing or advancing the views, claims or interests of a union or employer association.
Employees who don't attend work or who stop work without their employer’s approval may be participating in unprotected industrial action and could be subject to disciplinary action.
For more information, see Unprotected industrial action.
Source reference: Fair Work Act 2009 s.340-342, 346-347, 351, 406 - 469 and 477