Protected and unprotected industrial action

Industrial action is a tool employees and employers can use to resolve disputes during enterprise bargaining. 

A dispute during enterprise bargaining may be when one or more parties disagree on something to be included in the proposed enterprise agreement. 

In workplaces, the parties are usually:

• the employer
• the employees
• their representatives

Australian law recognises industrial action as:

• protected industrial action; or
• unprotected industrial action

Industrial action may look like:

• Employees performing work differently to normal that restricts or delays that work
• Employees stopping work
• Employees not going to work or refusing to do work
• Employers locking employees out of their workplace and not allowing them to work.

The Fair Work Act 2009 says protected industrial action is legitimate.

Protected industrial action under the Fair Work Act protects employees and employers from most of the legal consequences of that protected action. 

This may include:

• protecting employees from being threatened with dismissal
• being discriminated against based on the action being taken
• employers may also be protected from the legal consequences of their protected lockout of employees.

Industrial action that involves or is likely to involve personal injury or the wilful damage, destruction, taking or use of property may not be protected.

To take protected industrial action, employees must first apply to us to conduct a ballot to seek the views of those involved.

This application is called a Form F34 –Protected action ballot order application. 

Protected industrial action cannot be taken unless any applicable existing enterprise agreement is near to or has reached its expiry date, and the employees are bargaining for a new agreement. 

If we approve the application, we will make an order to permit the employees to organise a protected action ballot. 

We will also make an order directing all bargaining representatives to attend a compulsory conciliation conference during the ballot period.

The protected action can only go ahead if:

• the majority of the employees vote and most voters in the ballot are in favour
• the bargaining representative who made the application for a protected action ballot order has attended the compulsory conciliation conference
• the action starts within 30 days of the ballot result being declared (or a longer period, if we have extended the time).
• if the proposed agreement is a single-enterprise agreement - the employer receives at least 3 days written notice before the action (or a longer period if required by us)
• if the proposed agreement is a multi-enterprise agreement – the employer receives at least 120 hours written notice before the action (or a longer period if required by us)

If an employee bargaining representative who applied for the protected action ballot order doesn’t attend the compulsory conciliation conference — the employee(s) that they represent will not be able to take protected industrial action. 

If any employer bargaining representative does not attend the compulsory conciliation conference — the employer cannot take employer response action.

If you are impacted by the industrial action, you can in certain circumstances Apply to suspend or end protected industrial action (Form F37)

In Australia, unprotected industrial action is not legitimate. 

Unprotected industrial action is when employees take action:

• when there is no bargaining for a new enterprise agreement occurring
• prior to their existing agreement’s expiry date
• without a successful protected action ballot
• without their bargaining representative attending a compulsory conciliation conference ordered by us
• to include unlawful terms in an agreement
• as part of pattern bargaining.

If unprotected action is taken, the law does not protect those involved from the legal consequences of that protected action. 

This may include a business seeking damages from those involved if unprotected action was taken and that action led it to suffer financial losses.

If an application is made to us and we find that the industrial action is unprotected, we must make an order to prevent or stop that action. The order can be enforced by the courts. 

Apply to prevent or stop unprotected industrial action (Form F14).