Servicing Australia wide HR consulting for employers Australia wide.

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.

Too busy running your business to be a HR geek? We get it…but why not have access to a HR geek when you need one? Bare Bones Consulting knows HR back to front; your rights, employment obligations and what you need to comply with the Fair Work Act. Using us is simpler than learning it yourself…and way better value for money. Call or contact us today to find out how simple we make things for you.

  • PO Box 3956,
    Burleigh Town 4220,
  • 07 5576 4693
  • 0401 279 065
  • Bare Bones Consulting

Contact Us

Give Bare Bones Consulting a call to discuss our range of HR services to help your business succeed.

Even if you elect to not proceed after our first complimentary consultation you’ll be in a better position to know what’s possible.

We believe our approach to HR is unique... but then again, so is your business.

Please enable JavaScript in your browser to complete this form.

Note: Bare Bones Consulting provides HR services for employers. Employees seeking advice on workplace concerns should contact the Fair Work Infoline on 13 13 94.