If your understanding of industrial action is a bit light on, here’s a quick overview to explain what it is and how it can impact your business.

Section 19 of the Fair Work Act 2009 (Cth) (FW Act) defines industrial action as:

• the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the 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 or refusal by employees to attend work or a failure or refusal to perform any work at all by employees who attend work
• The lockout of employees from their employment by the employer of the employees.

Industrial action does not include:

• action by employees that is authorised or agreed to by the employer;
• action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
• action by an employee if:
  1. The action was based on a reasonable concern of the employee and an imminent risk to his or her health or safety
  2. The employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace that was safe and appropriate for the employee to perform.

Protected industrial action

The FW Act allows for protected industrial action to be taken for a proposed enterprise agreement by:

• Employees that will be covered by the agreement or their bargaining representatives, against the employer that will be covered by the agreement
• The employer who will be covered by the agreement in response to industrial action by the employee(s) who will be covered by the agreement or their bargaining representatives.

Prior to taking industrial action, it must be supported by employees through a protected action ballot. Furthermore, for industrial action taken by employees or their bargaining representatives to be protected it must:

• not be used to support or advance claims for unlawful terms
• not be part of pattern bargaining
• not relate to a demarcation dispute
• involve their bargaining representative genuinely trying to reach agreement.

Protected industrial action cannot be organised or occur prior to the nominal expiry of an enterprise agreement.

Additionally, industrial action cannot be taken for a proposed multi-enterprise agreement or a Greenfields agreement.

Protected action ballot

Prior to taking protected industrial action, an employee bargaining representative must make an application to the Fair Work Commission (FWC) for a protected action ballot.

A copy of the application must be provided to the employer and the proposed ballot agent (usually the Australian Electoral Commission) within 24 hours of the application being made.

The FWC must make a protected action ballot order where the applicant has been, and is, genuinely trying to reach agreement with the employer.

For a protected action ballot to authorise industrial action:

• the industrial action must relate to the questions that formed part of the ballot application order
• at least 50 per cent of employees on the roll of voters in the ballot voted
• more than 50 per cent of those valid votes approve the industrial action
• The action must start within 30 days of the declaration of the result of the ballot (unless the period is extended by the FWC).

Types of industrial action

Protected industrial action falls into three groups:

• Employee claim action – industrial action taken by employees or their bargaining representative(s) against the employer, in support of their claims relating to the agreement
• Employer response action – industrial action taken by the employer in response to industrial action engaged in or organised by the employees or their bargaining representative(s)
• Employee response action – industrial action taken by employees or their bargaining representative(s) in response to industrial action engaged in or organised by the employer.

Employee claim action falls into two main types, work bans and partial work bans. Work bans are a refusal to carry out any work during a specified period. Work bans generally range from a one hour stop working meeting through to indefinite strike action.

Partial work bans involve a refusal by employees to undertake one or more of their duties.

Notice of industrial action

Before employees take industrial action, written notice must be given to the employer.

Unless the action is in response to industrial action taken by the employer, at least three days’ notice of the planned action must be given (unless the protection action ballot order states a longer period).

The written notice must specify the nature of the action that will be taken and the day that it will start.

Termination/suspension of protected industrial action

The FWC may suspend or terminate protected industrial action only in very limited circumstances.

The FWC may:

• suspend or terminate protected industrial action if it is causing (or threatening to cause) significant economic harm to the employer and/or employees who will be covered by the agreement
• suspend or terminate protected industrial action if it is or will threaten life, personal safety or health of the population or cause significant damage to the economy
• suspend protected industrial action to provide for a cooling off period
• suspend protected industrial action if it is adversely affecting the employer or its employees, or it is threatening to cause significant harm to a third party.

The Minister for Employment also has the ability to terminate the protected industrial action where it is:

• threatening to endanger the life, personal safety or health, or welfare of the population (or part thereof)
• threatening significant damage to the Australian economy.

Where protected industrial action is terminated, the FWC must make a workplace determination (establishing terms and conditions of employment) where the bargaining representatives have not settled all of the matters in relation to the proposed agreement within 21 days of the termination of the industrial action.

Unprotected industrial action

Unprotected industrial action is industrial action which is not authorised by a protected action ballot, occurs before the nominal expiry date of an enterprise agreement, is part of pattern bargaining, or a secondary boycott. If it appears to an employer that unprotected industrial action is:

• happening, or;
• threatened, impending or probable, or;
• being organised;

the employer can make an application to the FWC for an order that the industrial action stop, not occur or not be organised for a specified period.

This response is not available where the industrial action is or would be protected action.

Contravening an order made by the FWC can result in penalties of up to $12,600 for an individual and $63,000 for a corporation.

Payment for industrial action

Protected Industrial Action

An employer is prohibited from making payment to an employee for the total duration that the employee is engaged in protected industrial action.

Unprotected Industrial Action

Where a period of unprotected industrial action is taken for less than four hours on a day, the employer must withhold a minimum of four hours payment from the employee.

If the period of unprotected industrial action exceeds four hours on a day, then there can be no payment for the total duration of the industrial action that day.

Failure to comply with this requirement may result in civil penalties being applied of up to $12,600 for an individual and $63,000 for a corporation.

CCIWA can provide more detailed information to assist you in avoiding and/or preparing for industrial action, as well as providing assistance with preparing enterprise agreements. For further assistance call CCIWA’s Employee Relations Advice Centre on (08) 9365 7660 or email [email protected].