What is industrial action?

Industrial action can either be protected or unprotected.

The concepts of protected action and a limited right to strike within a bargaining period were introduced in the Industrial Relations Reform Act 1993 (Cth). The Workplace Relations Act 1996 (Cth) then introduced prohibitions on industrial action during the life of an agreement and payment during strikes.

The purpose of taking protected industrial action is so that employees or employers can support or advance their claims during bargaining in relation to a proposed enterprise agreement.

The distinction between protected industrial action and unprotected industrial action is important due to the consequences that flow from the classification of the action. Where industrial action is 'protected', a limited immunity applies, meaning that the remedies that might otherwise be sought in relation to the industrial action are generally not available.[1]

Industrial action which is not protected may be stopped or prevented by the Fair Work Commission making orders, and the enforcement of those orders by the Court.[2]

State and federal courts also have powers under statute and the general law to grant remedies in relation to industrial action that is not protected. This benchbook does not address the powers of these courts and instead focuses on the role of the Commission.

Related information

• Immunity

See Fair Work Act s.19

Industrial action means action of any of the following kinds:

• 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 which results in a restriction, or limitation on, or a delay in the performance of 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 for work or a failure or refusal to perform any work at all by employees who attend for work, or
• the lockout of employees from their place of employment by the employer.

The term the performance of work is not restricted to how the tasks associated with a particular job are performed. It involves for example when work is performed, where work is performed, how work is performed and the conditions under which work is performed.[3]

Industrial action where there is a failure or refusal by employees to attend for work, or a failure or refusal to perform any work at all by employees who attend for work, is historically known as a strike.

An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Industrial action does not include the following:

• action by employees that is authorised or agreed to by the employer of the employees
• action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer, or
• action by an employee if:
  • the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety, and
  • 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.

The definition of industrial action under the Fair Work Act, is limited to conduct in connection to disputes of a particular kind and with bargaining. Action will not be industrial in character if it stands completely outside the area of disputation and bargaining.[4]

A Full Court of the Federal Court has observed that '[u]ltimately, the question posed by s.19(1) of the FW Act is whether action can be said to be "industrial" in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is "industrial", but it is not determinative'.[5]

Employers have various statutory and common law rights to respond to industrial action by employees and such responses will not constitute industrial action unless the employer's action is a lockout. For example, in particular circumstances an employer may have the right to respond to industrial action by:

• standing-down employees in accordance with Part 3–5 of the Fair Work Act, or
• declining to pay employees for partial work bans in accordance with partial work bans under s.471(4).

Related information

• Partial work bans
• Standing down employees

Action found NOT to be industrial action

Providing material to media – Ambulance Victoria v United Voice

[2014] FCA 1119 (17 October 2014)

Facts

A protected action ballot was conducted to determine whether members supported the taking of various forms of action. The ballot received the support of a majority of members. One of the actions approved in the ballot was that members who are acting or appointed as Team Managers and Senior Team Managers would make all response time data available to the media without the approval of Ambulance Victoria’s Executive General Managers. This release of information would be in breach of Ambulance Victoria policies and the contracts of employment of the relevant employees.

The duties of the managers included the collection and analysis of information relating to response times of ambulances in their areas. It was not part of their duties to provide such information to persons outside Ambulance Victoria, including reporters and others engaged by media outlets.

Outcome

The Court found that it could not be said that managers making response time data available to the media, in breach of their contracts of employment, involved the performance of their normal work in a manner different from that in which it was customarily performed. Nor was it ban, limitation or restriction on the performance of their work. What was proposed was the taking of action above and beyond, and outside the range of their normal work, rather than the placing of a restriction on its performance.

Relevance

When considering whether action is industrial action as defined in ss.19(1)(a) and (b) of the Fair Work Act, it is necessary to look at the work of the employee and how it is normally performed. A lack of any connection between that work or how it is usually performed and the action suggests that the action is unlikely to fall within the definition of industrial action. Note however, that in this case the Court did comment that the action may have been characterised differently if the managers were interrupting other duties to provide the information to the media.

Action found to be industrial action

Wearing campaign clothing – Australian Nursing Federation (Victoria Branch) v Mornington Peninsula Shire Council

 [2011] FWA 4235 (Lawler VP, 4 July 2011). Confirmed on appeal [2011] FWAFB 4809 (Watson SDP, Kaufman SDP, Gooley C, 22 July 2011), [(2011) 210 IR 419].

Facts

The ANF applied for an order for a protected action ballot. That application was granted in the first instance by the Commission. Mornington Peninsula Shire Council sought an appeal of that decision on the grounds that, among other things, the action being proposed regarding the wearing of campaign clothing did not constitute industrial action.

Outcome

The Full Bench dismissed the appeal and held that the term ‘the performance of work’ was not restricted to how the tasks associated with a particular job are performed. It involved when work is performed, where work is performed, how work is performed and the conditions under which work is performed. In relation to s.19(1)(b) it held that if an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work. Accordingly such action was capable of being characterised as industrial action.

Relevance

The Court may consider both the work an employee does and the circumstances in which they do the work. Sections 19(1)(a) and (b) describe different circumstances. In order to fulfil the definition in s.19(1)(a), the action must cause a particular result, namely a restriction or limitation on, or a delay in the performance of work. It is not necessary for the action to have that result to satisfy the definition in s.19(1)(b).

Placing material on vehicles – Australian Municipal, Administrative, Clerical and Services Union v Lend Lease

 [2014] FWC 5676 (Bissett C, 20 August 2014).

Facts

The union made an application for a protected action ballot order. Lend Lease raised issues with a number of specific items of industrial action proposed by the union, including:

• attaching, incorporating or distributing Union and industrial campaign related material to outgoing correspondence
• wearing, distributing and posting union campaign material such as t-shirts, badges, written communications and stickers, and
• writing messages regarding agreement negotiations on vehicles.

Outcome

The Commission held that each of the items of proposed industrial action could constitute industrial action within the meaning of the Fair Work Act.

Relevance

The Commission found that the placing of a slogan on a car may well fall within the definition of ‘performance of work’ which includes when, where and how the work is performed and the conditions under which work is performed. However, the content of the message and the manner of affixing it to the vehicle may be relevant in determining if the action is industrial action. The Commission noted that if the action resulted in the destruction of or damage to, property the immunity provisions granted to protected industrial action would not apply.