Industrial action and protests
Industrial action means certain actions taken by employees, employers, regulated workers or regulated businesses. It can be protected or unprotected.
Employees and employers have rights and obligations when employees want to attend protests during work time.
On this page:
- What industrial action includes
- Protected industrial action
- Unprotected industrial action
- Participating in protests
- Tools and resources
- Related information
What industrial action includes
Industrial action includes action taken by an employee when they:
- don't come to work or leave work for a period of time (for example, going on strike)
- fail, or refuse to perform any work at all (for example, a work stoppage)
- delay or put a ban or limit on the work they do
Industrial action also includes action taken by an employer to lock their employees out of a workplace.
Industrial action doesn’t include action:
- by employees that is authorised or agreed to by their employer, or
- action by an employer that is authorised or agreed to by their employees.
Industrial action also includes the same types of actions by certain regulated workers and regulated businesses.
We provide general information on industrial action. The Fair Work Commission (the Commission) is the national workplace relations tribunal and registered organisations regulator. They can make orders about industrial action.
For information on the processes for taking, suspending and stopping industrial action, visit the Commission’s website at Industrial action.
Protected and unprotected industrial action
There are two different types of industrial action:
Protected industrial action
Protected industrial action is lawful. When an employee or employer is taking protected industrial action, they have certain rights and protections.
Protected industrial action can be taken when bargaining for a new registered agreement is unsuccessful.
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't happen when protected industrial action is taken?
The Fair Work Act prohibits a person from taking adverse action against a person because that person takes part in, or proposed to take part in, an ‘industrial activity’. Adverse action can include dismissing or discriminating against an employee, or threatening to do either.
Industrial activity includes:
- becoming or not becoming a member of a union
- organising lawful activity on behalf of a union
- representing a union or seeking to be represented by one
- exercising a workplace right (such as participating in protected industrial action, or in a protected action ballot).
Civil action (for example being sued) 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 below.
What can happen when protected industrial action is taken?
Civil action 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.
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. If a person doesn’t comply with a Commission order, they could face civil penalties of up to $19,800 for an individual or $99,000 for a body corporate.
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 because 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 must 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.
What parties can do if they’re affected by unprotected industrial action
If unprotected industrial action affects or is likely to affect you, or you are an organisation where industrial action will affect or is likely to affect your members, you can:
- make an application to the Commission for an order to stop unprotected industrial action
- report the conduct to us, including anonymously.
If you are affected by a person not complying with a Commission order to stop unprotected industrial action, you can also report this conduct to us. For information about how to do this, visit Contact us.
Participating in protests
Employees who don't attend work or who stop work without their employer’s approval to attend a protest:
- may be participating in unprotected industrial action
- could be subject to disciplinary action.
Find out more at Unprotected industrial action above.
An employee may request leave to attend a protest during worktime. For example, 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.
Under the general protections, employers also 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.
Source reference: Fair Work Act 2009 s.340-342, 346-347, 351, 406 - 469 and 477
Tools and resources
- Industrial action fact sheet
- Payment during industrial action
- Fair Work Commission – Industrial action
- Send us an anonymous tip-off
- Which Fair Work can help you Which Fair Work can help you
