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Industrial Action

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Under international law, workers have a right to take industrial action. The United Nations has called the right to strike “one of the principal means by which workers and their associations may legitimately promote and defend their economic and social interests”. It has been accepted as an industrial right since the early days after World War II.

However, in Australia, this right is severely curtailed under the Fair Work Act, the Workplace Relations Act and the Trade Practices Act. Industrial action may lawfully be taken only in very limited circumstances and after approval from the Fair Work Commission (FWC). The restrictions on industrial action under Australian law have received criticism by international bodies as being contrary to international law.

What is industrial action?

Section 18 of the Fair Work Act defines industrial action as including:

  • The performance of work in a way that is different to how it is usually performed, or the adoption of a practice that limits, restricts or delays the performance of work;
  • A ban, limitation or restriction on the performance of work by an employee;
  • A refusal to attend work or perform any work;
  • The lockout of employees from the workplace by the employer;

Industrial action does not include actions by workers that have been agreed to by employers or actions by employers that have been agreed to by workers. It also does not cover an action by employees based on reasonable concerns about an imminent threat to their lives or safety.

When is industrial action lawful?

Workers can lawfully participate in industrial action when bargaining for a new registered agreement has been unsuccessful. This is known as protected industrial action. Such an action can occur provided:

  • The existing agreement has expired;
  • Parties have made a genuine effort to reach an agreement;
  • The action is authorised by a protected action ballot;
  • The notice requirement for action is met;
  • The action relates to claims about permitted matters;
  • The action does not relate to unlawful terms;
  • There is no ‘pattern bargaining’.

How is industrial action initiated?

In order to initiate protected industrial action, a representative of an employee must apply to the FWC for a protected action ballot order. A copy of the application must be provided to the employer.

If the application meets the requirements, the FWC will then issue a protected action ballot order. A protected action ballot is a secret ballot where all employees that will be covered by the proposed agreement may vote on whether or not they want to initiate industrial action.

The action will be approved if at least half of the eligible voters voted and at least half of those who voted, voted in favour of the action. The action must then start within 30 days of the results of the ballot being declared.

Industrial action that is not protected

If an unprotected industrial action occurs, the Fair Work Commission can make an order to stop or prevent it from occurring. This can be done at the FWC’s own initiative or upon application by an affected person.

If an unprotected industrial action continues after such an order has been made, the action is unlawful and may attract penalties of up to $12,600 for an individual or $63,000 for a corporation.

Consequences of industrial action

Employees cannot be fired or discriminated against for taking part in industrial action. However, if industrial action results in injury, defamation or damage to property it may result in civil action.

The Fair Work Commission can suspend or end a protected industrial action if it might:

  • cause significant economic harm to either party;
  • endanger someone’s life, health, personal safety or welfare;
  • cause significant damage to the Australian economy.

Political strikes

Strikes for political rather than industrial purposes are unlawful in Australia. Such a strike is at common law a breach of the employment contract and leaves the persons involved open to civil actions such as interlocutory injunctions to stop the strike, actions for breach of contract, intimidation, civil conspiracy and causing economic loss by unlawful means.

Australia has not legislated to provide protection against these common law civil remedies except in the case of protected industrial action as discussed above. Some argue that this is a breach of our international law obligations and that protections should exist for workers who choose to strike for political or industrial reasons outside of those that constitute ‘protected industrial action’.

Secondary boycotts

A secondary boycott is when a group of workers refuse to work for, purchase from or handle products of a business with which they have no dispute in order to influence the actions of another business. One of the most commons types of secondary boycott is a sympathy strike, which is when a union takes industrial action to try to force an employer to stop trading with another entity until the other entity agrees to demands.

In Australia, secondary boycotts are illegal under the Trade Practices Act, on the basis they are harmful to trading freedom and to competition. Secondary boycotts attract financial penalties under that act. However, the act permits boycotts by employees if they are conducted for a purpose related to remuneration, working conditions or hours of work of the employee or other employees of the same employer.

Criticisms of Australian laws

Australia’s restrictions on industrial action are out of keeping with the labour laws of other developed countries. The International Labour Organisation has criticised Australia’s ban on secondary boycotts as an interference with the right to strike. Some lawyers and academics have publicly argued that Australia’s restrictions on the right to strike fall foul of international law and that the right to strike should be better protected.

The extent to which workers should be able to protest through industrial action remains a contentious issue.

If you require legal advice or representation in an employment law matter or in any other legal matter, please contact Go To Court Lawyers.

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