Industrial action, under the Fair Work Act 2009 (Cth), is action that has an industrial character and occurs within the area of industrial disputes and bargaining.

Industrial action can be taken by:

  • employees;
  • employers;
  • unions;
  • employer associations; or
  • a person representing an employer or employee in bargaining for an enterprise agreement.

It includes:

  • an employee performing work in a manner different from how it is customarily performed;
  • an employee adopting a practice that results in a restriction, limitation on, or a delay in the performance of work;
  • a ban, limitation or restriction on the performance of work by an employee, or on the acceptance of or offering for work by an employee;
  • a failure of, or refusal by, employees to attend the workplace, or an employee's failure or refusal to perform work, i.e. a strike; or
  • the lockout of employees from their place of employment by the employer.

The rules regarding industrial action in the FW Act only apply to action that is of an industrial nature, and do not apply to, for example, action that is authorised, action that is based on an employee’s reasonable concern of an imminent risk to their health and safety, and action that does not involve a stoppage or interference with work.

Protected industrial action makes the employees taking the action (and any union organising the action) immune to legal remedies that otherwise would be available. Protected industrial action is industrial action that is permitted by the FW Act. If industrial action is protected, a union cannot be sued for damages arising from the action.

The intention behind the FW Act is that unions, employers, and employees should be able to take lawful industrial action if an enterprise agreement is being negotiated.

The FW Act identifies three types of protected industrial action:

  • employee claim action – taken in relation to a proposed enterprise agreement against an employer who will be covered by the agreement;
  • employer response action – taken by an employer who will be covered by the agreement organises or engages in as a response to industrial action taken by employees or unions; and
  • employee response action – organised or engaged in by employees in response to industrial action by their employer who will be covered by the agreement.

There are certain requirements for industrial action to be protected. These include things like it must be engaged in or organised by an employer, employee or union covered by an enterprise agreement or workplace determination, it must not relate to a proposed greenfield agreement or multi-enterprise agreement, it must not be organised or engaged in before the nominal expiry date specified in the enterprise agreement, the notification requirements must be satisfied, it must not be taken in support of pattern bargaining, etc.

If there are unprotected participants in the industrial action, this will not affect the legal immunity of protected participants, but the unprotected participants will be exposed to legal orders and penalties.


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