Industrial action

The Fair Work Act 2009 (the Act) regulates the ability of employees and employers to take and respond to industrial action. Under the Act, protected industrial action remains available only once the nominal expiry date for an enterprise agreement has passed and where it is authorised by a secret ballot.

Fair Work Australia (FWA) may make orders to stop industrial action in specified circumstances, and it may also set out restrictions on payment to employees during periods of industrial action.

Master Builders is very experienced in helping members respond to industrial activity, and can represent members at Fair Work Australia. For more information or to discuss your options, contact Master Builders.

What is ‘industrial action’?

Employee industrial action

‘Employee industrial action’ includes:

  • The performance of work in a way that is different from the way in which work is usually performed or adopting a practice in relation to work that results in a restriction or limitation on or delay in the performance of work
  • A ban, limitation or restriction on the performance of work or on the acceptance of work
  • A failure or refusal to attend for work or a failure or refusal to perform work by the employees who attend for work.

Employer industrial action

Employer industrial action may be in the form of a ‘lock out’ of employees. A lock out takes place if an employer prevents the employees from performing work under their contracts of employment, without terminating those contracts.

Protected industrial action

Protected industrial action means that employers, employees or their bargaining representatives may legally take industrial action during bargaining.

Certain requirements must be met by an employer, employee or their bargaining representatives for industrial action to be protected.

For example:

  • The bargaining representatives must be genuinely trying to reach agreement
  • The bargaining representatives must not have contravened any orders in relation to the industrial action or bargaining
  • The bargaining representatives must have given proper notice of the industrial action
  • The bargaining representatives must not have organised or engaged in industrial action before the nominal expiry date of the enterprise agreement
  • There must be no suspension or termination order of the industrial action or serious breach declaration in operation.

Unprotected industrial action

Industrial action that is not carried out in accordance with the Act, or that contravenes any orders made by FWA, is unprotected industrial action. Employees who take part in unlawful (i.e. unprotected) industrial action may also be exposed to liability at common law or under the Building and Construction Industry Improvement Act 2005.

Employers have various options available to them when responding to unprotected industrial action including:

  • Seek s418 FWA’s Orders Stopping Industrial Action (also known as return to work orders)
  • Notify FWA of a dispute and seek recommendations (these are not binding)
  • If a S418 order is in place or an enterprise bargaining agreement has not passed its nominal.

Seeking an s418 order

Master Builders can help you prepare and draft an s418 order, and act as your representative to FWA.

Master Builders unprotected industrial action questionnaire will help you collect the information you need from employees and contractors for evidential purposes.

Employers seeking an s418 order should:

  1. Identify the event/s that have actually occurred and why the event/s amount to unprotected industrial action.
  2. Make a decision about seeking s418 orders, and then don’t waste any time following through.
  3. Contact Master Builders, who will notify FWA that an application is pending.
  4. Ensure a person, who has seen the event/s and spoken with the relevant union/s about the industrial activity, is able to complete sworn statement and appear in the witness box.
  5. Ensure the relevant managers and witnesses are available to attend FWA in person and at short notice.

Site safety exception to industrial action

If an employee refuses to perform work because of a reasonable concern for their immediate health or safety, this will not be regarded as industrial action. However, the employee must not unreasonably fail to comply with a direction of the employer to perform other available work, whether at the usual workplace or another workplace, providing that work is safe for the employee to perform.

Read more about managing site safety stoppages.