Industrial action
Industrial action can be taken in certain circumstances. It can be protected or unprotected.
Employees and employers have rights and obligations in relation to industrial action.
On this page:
- What industrial action includes
- Protected industrial action
- Unprotected industrial action
- Tools and resources
- Related information
What industrial action includes
Industrial action may include action taken by an employee when they:
- refuse to 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
- an employer that is authorised or agreed to by their employees
- an employee that is based on a reasonable concern about an imminent health or safety risk, provided the employee did not unreasonably refuse a safe alternative task.
Industrial action also includes the same types of actions by certain regulated workers and regulated businesses.
Example: Not attending work
If an employee does not attend work as part of a demand that their employer change conditions of employment (for example, a ‘wildcat’ strike), they would likely be engaging in industrial action.
However, if an employee agrees with their employer to take annual leave to cover their absence during this period, they would not be engaging in industrial action.
An employee needs to request to take annual leave before the leave starts. The process for requesting annual leave is often set out in a company policy or contract of employment.
An employer can only refuse an employee's request for annual leave if the refusal is reasonable.
We (the Fair Work Ombudsman) provide general information on industrial action. We can investigate potential breaches of the industrial action provisions in the Fair Work Act. For example, we can investigate when an employer or employee hasn’t complied with certain orders made by the Fair Work Commission (the Commission).
The Commission is the national workplace relations tribunal and registered organisations regulator. They can make orders about industrial action. Examples of what is and is not industrial action are available in the Commission’s Industrial Action Benchbook.
For information on the processes for taking, suspending and stopping industrial action, visit the Commission’s page about Industrial action.
Protected and unprotected industrial action
There are two different types of industrial action
Protected industrial action
When an employee or employer is taking protected industrial action, they have certain rights and protections.
Protected industrial action can be organised and taken in support of bargaining for a new enterprise agreement.
The Commission deals with applications to take protected industrial action.
There are several requirements that must 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, or to advance, claims about permitted matters or reasonably believed to be about permitted matters
- be authorised by a protected action ballot, and the employee bargaining representative that applied for the protected action ballot must attend a compulsory conciliation conference during the ballot period as ordered by the Commission
- not be about unlawful terms
- not involve pattern bargaining.
For more information about permitted matters and pattern bargaining, visit the Commission’s website at:
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) must attend a compulsory conciliation conference during the ballot period as ordered by the Commission. If they do not attend the compulsory conciliation conference, they cannot take employer response action.
Common requirements that apply to protected industrial action taken by either the employee, employer or their bargaining representatives include:
- the industrial action must not relate to a greenfields or cooperative workplace agreement
- the parties must have been genuinely trying to reach an agreement
- notice requirements for the action must be met
- there has not been a contravention of any orders that apply
- any existing agreement has passed its nominal expiry date
- industrial action must not relate to a demarcation dispute.
What safeguards are in place when taking protected industrial action?
The Fair Work Act prohibits a person from taking adverse action against another person because that person takes part in, or proposes to take part in, an ‘industrial activity’. Adverse action can include firing 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, or not 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.
Protection from being taken to court
Generally, persons organising and/or engaging in protected industrial action can’t be sued. However, might still be available where the industrial action is, or is likely to, involve:
- injuring someone
- deliberately or recklessly damaging property
- illegally taking, keeping or using of property
- defamation (making false claims that hurt someone’s reputation).
We can also investigate allegations of unlawful conduct occurring during protected industrial action. When undertaking an investigation, the Fair Work Ombudsman does so in accordance with its Compliance and Enforcement Policy Compliance and Enforcement Policy which outlines the range of actions available to it.
When can steps be taken to stop protected industrial action?
The Fair Work Commission can make an order to suspend or end protected industrial action where that action is likely to:
- cause significant economic harm to the employers or employees covered by the enterprise agreement
- endanger someone's life, personal safety, health or welfare
- cause significant damage to the Australian economy or an important part of it.
If a person does not comply with a Commission order, a person affected may seek to enforce it through civil remedy proceedings in the courts. Failure to comply with an order may result in the court imposing a monetary penalty or making other orders.
The Minister for Employment and Workplace Relations can also make a declaration to end protected industrial action where the Minister is satisfied that the action threatens to:
- endanger the life, the personal safety or health, or the welfare, of the population or part of it, or
- to cause significant damage to the Australian economy or an important part of it.
Payments during protected industrial action
There are rules about pay when employees take industrial action. For more information, visit our Payment during industrial action page.
Unprotected industrial action
If industrial action doesn’t meet the criteria for protected industrial action, it is known as unprotected industrial action.
Industrial action does not include action by an employee if:
- the action was based on a reasonable concern by the employee about an imminent risk to their health or safety, and
- the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work (including at the same or another workplace, that was safe and appropriate for the employee to perform).
What parties can do if they’re affected by unprotected industrial action
What you can do in the event of unprotected industrial action
If unprotected industrial action affects or is likely to affect you, you can:
- make an application to the Commission for an order to stop or prevent unprotected industrial action that is happening, threatened, or is being organised
- report the conduct to us, including anonymously.
Issues of immediate threat to health and safety or situations involving trespassing should be reported to emergency services or police immediately.
If a person doesn’t comply with an order, they could face civil penalties. For the current penalty amounts for both individuals and companies, visit our Litigation page.
Those who organise unprotected industrial action can also face other consequences. For example:
- 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.
If you’re affected by a person not complying with a Commission order to stop or prevent unprotected industrial action, you can report this conduct to us. For information about how to do this, visit Contact us.
Payments during unprotected industrial action
There are rules about pay when employees take industrial action. For more information, visit our Payment during industrial action page.
Attendance at rallies and protests
An employee may request leave to attend a rally or 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.
However, employees who don't attend work or who stop work without their employer’s approval to attend a rally or protest:
- may be participating in unprotected industrial action
- may be taking an unauthorised absence
- could be subject to disciplinary action.
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.
Unauthorised absences
Unauthorised absences are times away from work without the employer’s approval.
Examples of unauthorised absences include periods of unauthorised industrial action by employees who take time off work without their employer’s permission. Unauthorised absences don’t count as service. For more information about unauthorised absences, visit Unpaid leave.
Case study: Unauthorised absence to participate in unprotected industrial action
A commercial construction project is underway in the Adelaide CBD. The workplace and its employees are covered by an enterprise agreement. The agreement is not due to nominally expire for another 12 months, so protected industrial action cannot be organised or taken at this time.
One morning at 10:00 am, employees hear about a protest happening in a nearby park. The protest has been organised by their union, in support of various issues related to their workplace. Union officials are urging all members in the area to immediately ‘down tools’, walk off site and join the protest.
Many of the employees on site immediately stop work and join the protest. They don’t return to the worksite for the rest of the day. The ‘walk off’ lasts more than 4 hours.
The employer has not authorised or agreed to the employees walking off the construction site and none of the employees requested leave (for example, annual leave) from the employer so that they could attend the protest. This means the union and the union officials have organised, and the employees are taking, unprotected industrial action in the form of a work stoppage.
The employer is directly affected by the industrial action and applies to the Commission for an order for the action to stop. After reviewing the evidence and hearing from the parties, the Commission makes the order to stop the industrial action.
If the order is not followed (for example, the work stoppage continues), the Fair Work Ombudsman, or a person affected by the contravention, can apply to the courts to enforce the order. Civil penalties may apply for contravening the order.
Payment during unprotected industrial action (known as ‘strike pay’)
Because the unprotected industrial action by the employees lasts more than 4 hours, the employer must not pay any of the employees for the total period of the industrial action (known as ‘strike pay’). Civil penalties can apply to:
- the employer, if they pay the employees for that period
- an employee, if they ask for, or accept pay from the employer for that period
- the union or a union official, union delegate or union member, if they ask the employer to pay the employees for that period.
Source reference for page: Fair Work Act 2009 sections 19, 340–342, 346–347, 351, 406–469, 477, 539
Tools and resources
- Industrial action fact sheet
- Payment during industrial action
- Fair Work Commission – Industrial action
- Send us an anonymous tip-off
