Chapters

An extensive discussion of the law of industrial action is beyond the scope of this chapter. Since 1993 there has been a right to engage in protected industrial action for the purposes of advancing and supporting claims in connection with a prospective workplace agreement.

Industrial action is a broad and defined term covering a range of activities engaged in by the parties to an industrial dispute. Most frequently, it is used to describe the activities of employees and their unions, and involves action taken to disrupt work. The action may take the form of strikes, a refusal to work as directed by the employer, or the imposition of a ban on certain activities, or some other limitation or restriction on work performed. On the employer side, industrial action usually takes the form of what is known as a lockout, which is action that prevents (or locks out) the employees from performing their work and receiving their usual remuneration.

Industrial action is dealt with by Chapter 3 Part 3-3 of the FW Act. The FW Act prescribes requirements for industrial action to be protected industrial action. Those requirements include the holding of a protected action ballot to determine whether employees wish to engage in particular protected industrial action for the proposed workplace agreement. No action lies against a party taking protected industrial action unless the action involves personal injury or wilful and reckless damage to property (s415).

Industrial action that does not meet the requirements of Chapter 3 Part 3-3 of the FW Act is not protected and is unlawful. In those circumstances, the FWA has the power to order that industrial action ceases (s418). Also, those who participate in such action may be subject to civil liability, including damages and injunctions.

Only industrial action that meets the definition in the FW Act is capable of being protected. Picketing has been held by the courts not to be industrial action. Accordingly, it cannot be protected. That said, peaceful protest outside an employer's property (which is often described as picketing) is in law just that, peaceful protest, and hence not unlawful.

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