Industrial action and protests

Industrial action is taken by employers or employees to settle bargaining disputes.

Employees and employers have rights and obligations when employees want to attend protests during work time.

What industrial action includes

Industrial action includes when employees:

  • don't come to work or leave work for a period of time
  • 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 (the Commission).

The Commission is the national workplace relations tribunal and registered organisations regulator. They can make orders about industrial action.

Protected and unprotected industrial action

There are two different types of industrial action:

Protected industrial action

Industrial action can 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 Commission first.

There are several requirements that have to be met for industrial action to be protected.

For action organised or engaged in by an employee or employee bargaining representative, the action taken needs to:

  • be in support of claims about ‘permitted matters’
  • be authorised by a protected action ballot, and each employee bargaining representative that applied for the protected action ballot needs to have engaged in conciliation or mediation as ordered by the Commission before the ballot closes
  • not be about unlawful terms
  • not involve ‘pattern bargaining’.

There are also rules about action organised or engaged in by an employer in response to action by an employee (or their respective bargaining representatives) that is authorised by a protected action ballot. This includes that each employer (or employer representative) needs to have engaged in conciliation or mediation as ordered by the Commission before the ballot closes.

Common requirements that apply to protected industrial action taken by either the employee, employer or their bargaining representatives include:

  • industrial action must not relate to a greenfields or cooperative workplace agreement
  • parties have genuinely tried to reach an agreement
  • notice requirements for action are met
  • parties have not contravened any orders that apply to them
  • existing agreement has passed its nominal expiry date
  • industrial action must not relate to a demarcation dispute.

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
  • defamation.

The Commission can suspend or end protected industrial action that might for example:

  • 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.

Unprotected industrial action

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:

  • disciplinary action for employees
  • being sued for damages for losses suffered as a result of the action, or
  • being sued 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. This applies even if the unprotected industrial action was less than 4 hours. Learn more at Payment during industrial action.

Employees engaging in unprotected industrial action may also face civil penalties in some situations during agreement-making. This includes 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. This includes allegations of people engaging in or organising unprotected industrial action. Learn more from our Compliance and enforcement page.

Participating in protests

An employee may want to attend a protest during worktime and may request leave to attend.

If an employee wants to attend a protest and has requested annual leave to do this, the 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 registered 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. These are 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
  • could be subject to disciplinary action.

Find out more at Unprotected industrial action.

Source reference: Fair Work Act 2009 s.340-342, 346-347, 351, 406 - 469 and 477

Tools and resources

Related information

Resolving general protections issues

For employees:

Contact the Fair Work Commission (the Commission) first if you've lost your job and you think you were fired because of:

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's website to find out if you can apply for:

  • a general protections dismissal
  • unfair dismissal (not available if you lost your job because of a genuine Redundancy)
  • 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 Fixing a workplace problem section for practical advice on:

  • talking to your employer about fixing a workplace problem
  • getting help from us if you still can’t resolve the problem.

For employers:

Take general protections issues seriously. After you’ve read the information on this page, speak with your employee to address the problem.

We have resources to help you:

Help for small business