What is protected industrial action and what are your obligations

One of the general protections afforded to employees is freedom to participate in protected industrial action.

What is industrial action

Industrial action refers to actions taken by employees or an employer to address a dispute relating to the terms of a proposed enterprise agreement. These actions can take various forms such as a ban on work, refusing to work overtime or any other manner of work by an employee that is different to what is customarily performed which may cause a restriction or delay of the works performed.

The Fair Work Act 2009 (‘the FWA’) provides for industrial action to be protected if it is for one of the following:

• Employee claim action: action to support or advance lawful claims of employees in relation to a proposed enterprise agreement.
• Employee response action: action engaged in as a response to industrial action by an employer.
• Employer response action: action engaged in as a response to industrial action by an employee who will be covered by a proposed agreement, or the bargaining representative.

Common requirements for industrial action to be protected:

• The industrial action has been approved by the Fair Work Commission after a successful ballot.
• The persons organizing or engaged in industrial action must be genuinely trying to reach an agreement.
• The relevant notice of industrial action must be provided.
• The persons organizing or engaged in industrial action must comply with any orders made in relation to the industrial action.
• An enterprise agreement must have passed its nominal expiry date.
• No order suspending or terminating the industrial action may be in operation.

Employees and employers are immune to prosecution in law relating to participating or organizing protected industrial action, unless the industrial action has involved personal injury, willful or reckless destruction of or damage to property or the unlawful taking, keeping or use of property.

What are employer’s obligations relating to payment during industrial action

1. If an employee is engaged in protected industrial action against an employer, the employer must not pay the employee for the total duration of the industrial action on that day.
2. If an employee is engaged in unprotected industrial action, the employer must not pay the employee for the total duration of the industrial action on that day. The employer must withhold at least 4 hours of pay even if the total duration of the industrial action was less than 4 hours.
3. If the industrial action takes the form of a partial work ban, the employer must give the employee written notice of the proportional reduction of wages it intends to implement.

An employer who pays an employee’s wages for the period of the industrial action will be contravening the FWA and may incur significant penalties.

If you suspect your employees are engaged in unprotected industrial action or have any questions relating to your right and obligations relating to industrial action, please reach out to our Workplace Relations and Legal Team on 02 6175 5900.