Payments during certain forms of industrial action

When protected industrial action happens and is not a partial work ban, it is illegal for:

• an employer to pay an employee
• an employee to receive payment from an employer.

Payment is only illegal for the duration of the period in which industrial action is taken. For example:

1. Jane works at a factory that is bargaining for a new enterprise agreement.
2. Jane’s union makes an application to us for a protected action ballot order.
3. After the employer responds and a decision is made, we make the protected action ballot order. We also make an order directing all bargaining representatives for the proposed agreement to attend a compulsory conciliation conference. Her union attends this conference, and the employees at her workplace vote in the ballot to take industrial action. The vote is successful.
4. Jane and her fellow employees then take protected industrial action by striking for the entire day on Friday.
5. Jane’s employer must only hold back the amount that Jane would have received for working normally on Friday.

If the industrial action taken by employees is not protected, the employer must not pay employees during the industrial action, and they also must hold back at least 4 hours’ worth of pay, even if the action taken by employees was shorter than 4 hours long.

The rules for partial work bans are different.

The Fair Work Commission benchbook contains more detailed information on the rules about payments during industrial action, including partial work bans. 

See also Section 470 of the Fair Work Act 2009.