Industrial action: employer 101

More than 250,000 workers are expected to take industrial action on April 10 as Australia’s unions hold anti-government protests across the country.

While employees might support Australian Council of Trade Unions (ACTU) Secretary Sally McManus’ call for workers to “stand up for the fair go, for fair wage rises and better job security” by joining the rallies, employers should also be aware of their own legal position in dealing with those who fail to present for work on this day.

What is industrial action?

Under the Fair Work Act (2009), industrial action is defined as to include the following actions:

• employees performing work in a manner different to how it is normally performed
• employees adopting a practice that restricts, limits or delays the performance of work
• a ban, limitation or restriction by employees on performing or accepting work
• a failure or refusal by employees to attend for work or perform any work

Protected and unprotected action

Industrial action can either be protected or unprotected.

The distinction between protected action and unprotected action is important due to the consequences that flow from the classification of the action. Where action is ‘protected’, a limited immunity applies.

What is protected action?

Employees and employers can only take protected action when they are negotiating on a proposed enterprise agreement.

When an employee takes part in protected action, an employer must not threaten to dismiss or discriminate against the employee.

What is unprotected action?

All other industrial action is unlawful, and not protected.

Unprotected action: the consequences

If the action is unprotected, the employer must:

• not pay the employee during the action
• withhold at least 4 hours pay, even if the action was for less than 4 hours.
• If the period of unprotected action exceeds four hours on a day, then there can be no payment for the total duration of the industrial action that day.

Employers who don’t withhold payment of wages can face legal action and penalties.

Sick leave on the day of action

An employee who does not attend work on account of illness may not be engaging in industrial action.

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