In Australia, the concept of protected industrial action
provides immunity from prosecution under state and federal laws.
However, industrial action will be "protected" only
The nominal expiry date for the enterprise agreement has
The industrial action is in association with negotiations for
the renewal of an existing or proposed agreement (but not a
greenfields or multi-enterprise agreement);
The industrial action is to support claims in relation to the
agreement or in response to action on the part of the employer;
The majority of eligible employees vote in support of the
action through a secret ballot.
An application can be made to the Fair Work Commission
("FWC") for a protected action ballot order. The
industrial action will be protected where the action relates to the
questions included in the ballot, more than half of the eligible
employees vote, and more than half of those votes are in the
Where industrial action does not comply with the requirements
set out above, it will be unprotected or "unlawful"
industrial action. The FWC can make an order to stop unprotected
industrial action when it has already begun or can prevent
industrial action that is threatened, probable, or being organized.
Two recent instances of industrial action—the Gorgon strike
and the Hutchison strike—reflect the recent increase in
disputes relating to industrial activity in Australia.
The Gorgon strike involved employees working on the Gorgon LNG
Project in Western Australia. The project employed up to 10,000
people and was at risk of delays and cost blowouts. The previous
enterprise agreement nominally expired in January 2015, and the
employees were consistently rejecting proposed new enterprise
agreements. The unions sought authorization for industrial action,
and the FWC eventually granted a protected action ballot order.
The strike action was called off after unions and the employees
reached an in-principle agreement in relation to rosters and a 5
percent pay increase. The Gorgon Project now provides some of the
best roster and wage conditions in the construction industry in
Australia. For employers, however, the Gorgon Strike highlights the
importance of avoiding enterprise agreements expiring during phases
or work where delays could have significant impacts upon
The Hutchison strike arose when 40 percent of Hutchison
Ports' workers were made redundant overnight. Hutchison sought
an order preventing industrial action that was being organized on
the basis that it was unprotected, which the FWC granted. The union
sought an order from the Federal Court reinstating the employment
of the redundant individuals, claiming that Hutchison was in breach
of the enterprise agreement by failing to consult in relation to
redundancies and failing to comply with dispute resolution
The Federal Court saw merit in the union's argument and
granted an order restraining Hutchison from making the employees
redundant. Hutchison and the union have recommenced negotiations to
avoid further action. For employers, the Hutchison strike
demonstrates that employers taking action against unions engaging
in unprotected industrial action should ensure that they have
"clean hands" in order to avoid an adverse outcome.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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