Industrial action, in the form of strikes, is a tool used by workers and their unions to attempt to persuade their employers to make positive change in their workplaces. However, the law around the ability to lawfully take such action is relatively complex. In 2022, workers have participated in teachers' strikes, nurses' strikes, train strikes and many other industrial strikes across Australia. The considerable attention that workers' strikes attract has resulted in many employees throughout Australia asking; "what legal rights do I have to take industrial action and to strike?"
Can I strike? Unlawfully refusing to work is, generally, grounds for termination
The starting point in addressing your right to strike (or to take any industrial action including striking), is that refusing to attend work without a lawful reason for the absence (such as being medically unwell/unfit for duties) can be grounds for disciplinary action by an employer.
Given this, employees are best advised to talk to their union before striking. It will be important to be mindful of the legislative provisions relating to striking which, under section 19 of Fair Work Act (the Act), is a form of industrial action.
The Fair Work Act protects employees from their employers taking action against them (for example, termination of employment) in relation to taking industrial action (such as striking) in certain circumstances. This is referred to as protected industrial action and is ordinarily organised by the relevant union.
What is protected industrial action?
Under section 408 of the Act, your union can only assist you and other employees to take protected industrial action when:
- they are negotiating on a proposed enterprise agreement that is not a Greenfields or multi-enterprise agreement; or
- the action is in response to industrial action taken by their employer (and other conditions set out in the Act are satisfied).
A Greenfields agreement is an enterprise agreement relating to a new enterprise. This might include a new agreement for a business or activity, or a project or undertaking which is made when the employer has not yet employed the workers who will be covered by the agreement.
A multi-enterprise agreement is an agreement that covers two or more employers who are not working for a single interest.
The Act sets out lengthy procedural steps for taking protected industrial action. The relevant union is ordinarily the applicant. If followed, this will result in the Fair Work Commission issuing a protected action ballot to authorise the industrial action. In these circumstances, employees whose union has assisted them to take protected industrial action will generally be protected from disciplinary action and other civil action by their employer.
In order for the action to be protected, the following requirements will need to be met:
- not taking the action before the expiry of the existing industrial agreement;
- not occur before the parties have tried to reach agreement;
- comply with notice requirements (typically three days);
- comply with any relevant orders from the Fair Work Commission/a relevant Court;
- not be in relation to a demarcation dispute which is a dispute over which workers should be performing a particular job;
- not relate to unlawful agreement terms or be part of pattern bargaining (which is negotiating in relation to two or more enterprise agreements); and
- be authorised by a protected action ballot issued by the Fair Work Commission.
If these circumstances are not present, it is unlikely that the industrial action taken will be protected. Under section 418 of the Act, the Fair Work Commission can make an order to stop unprotected industrial action from being organised and/or occurring.
A warning; protected industrial action can be suspended under certain conditions
Employees and their union should be mindful that under section 424 of the Act, the Fair Work Commission must make an order to suspend protected industrial action in certain circumstances. This includes if the action would threaten the life, safety, health, or welfare of the population or part of it and/or the Australian economy or an important part of it. These are high thresholds to meet and ordinarily require some exceptional circumstances.
Responding to industrial action taken by my employer?
If your employer has taken industrial action against you, such as locking you out from work, you, with your union's assistance, may have the right, in response, to take protected industrial action. In such circumstances, you should seek assistance from your union.
To be protected from disciplinary or other civil action, your union will be mindful that the industrial action taken must be in response to the employer's protected industrial action.
Conclusion
Taking protected industrial action is a legitimate and useful tool for workers and their unions in enterprise bargaining. There are, however, complex legal requirements that must be met and non-compliance can create potential legal exposure to workers and their unions. Unions are well experienced in taking such action and the relevant requirements that apply. Workers should seek to utilise that experience when contemplating the taking of industrial action.
For advice as to whether a contemplated strike will be protected from disciplinary action, you should speak with your Union or arrange a consultation with one of our award-winning employment lawyers before taking part in the strike.
We note that this article has only set out the industrial action regime under the Fair Work Act which does not apply to employees covered by state-based legislation and state industrial instruments. If you are an employee covered by state-based legislation and state industrial instruments, you should seek advice from your union in relation to any potential industrial action.
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.
