Industrial action
- What is industrial action?
- What is protected industrial action?
- What is prohibited content?
- What is the AIRC's role?
- What is involved in taking protected industrial action?
- Orders to stop or prevent industrial action
You can also:
- Go to the Bargaining periods page
- Go to the Protected action ballots page
What is industrial action?
Industrial action, such as strikes, work bans and lock-outs, may be taken by unions, employees or employers in pursuit of a new collective agreement (an agreement covering a number of employees). Such action, however, is prohibited during the life of an agreement.
Examples of industrial action include:
- for employees—a failure or refusal to attend or perform work or a ban or limitation on the performance of work;
- for employers—the employer locks the workers out of their workplace (known as a lock-out).
What is protected industrial action?
Industrial action aimed at securing a new collective agreement may only be taken if certain requirements are met. Such lawful industrial action is known as protected action.
The requirements for taking protected industrial action include:
- an existing agreement has expired and the Australian Industrial Relations Commission (AIRC) has been notified that bargaining is beginning (this is known as initiating a bargaining period);
- the industrial action does not involve pattern bargaining;
- the industrial action is not in support of the inclusion of claims that cannot be lawfully included in an agreement (this is known as prohibited content); and
- in the case of unions or employees, the AIRC has granted an order for a protected action ballot to be held and the ballot has endorsed action being taken.
Protected action cannot be taken in support of claims for a multi-employer agreement.
In addition, industrial action will not be protected if:
- it is taken while the bargaining period has been suspended;
- one or more employees who are engaged in the action would not be covered by the proposed agreement; or
- it involves a union that did not initiate the bargaining period.
For further information on ballots go to the Protected action ballots page and for further information on bargaining periods go to the Bargaining periods page.
What is prohibited content?
Certain provisions, known as prohibited content, may not be lawfully included in agreements. If they are included they cannot be enforced. Details of what constitutes prohibited content can be found in the Workplace Relations Regulations 2006. Examples of prohibited content include clauses prohibiting the use of Australian workplace agreements (AWAs) or restricting the use of independent contractors and clauses allowing for industrial action during the life of an agreement.
What is the AIRC's role?
The AIRC plays a role in ensuring that the bargaining process, and any associated industrial action, occurs according to law. Unions, employees or employers wishing to take industrial action must first notify the AIRC that they are starting the bargaining process. They must then make a further notification of their intention to take industrial action and, in the case of unions or employees, seek an order for a secret ballot.
The AIRC has the power to suspend or terminate bargaining periods, an action which has the effect of making any industrial action taken unprotected. The AIRC may also make orders to stop or prevent industrial action. Such orders are enforceable in the courts.
What is involved in taking protected industrial action?
Before industrial action can be taken written notice must be given to the other side in the negotiations. Unless the industrial action is in response to industrial action taken by the other side, at least three days' notice must be given (unless the AIRC has ordered that more notice must be given). Such notice must state the nature of the intended action and the day it will begin.
The industrial action must also be properly authorised (e.g. by a committee of management of the organisation) and such authorisation provided to the Industrial Registrar.
In the case of unions and employees, a protected action ballot (also known as a secret ballot) is also required before the industrial action can be taken.
Orders to stop or prevent industrial action
Industrial action is only protected during a bargaining period. An application to stop or prevent industrial action must be granted by the AIRC if the action is unprotected. Such an application will be heard and determined within 48 hours.
An order to stop or prevent industrial action can be enforced in the courts.
To apply for an order you need to complete Form R17—Application for an order to stop or prevent industrial action.