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Taking protected industrial action
Table of contents
When can protected industrial action be taken?
Protected employee claim action can only be taken after the proposed action has been approved by a vote in a protected action ballot.
This does not apply to employee response action because it is only taken in response to employer response action, which has been taken in response to protected employee claim action. The protection from the initial employee claim action flows on to the employee response action.
The protected industrial action must commence within the 30 day period starting on date of declaration of the results of the ballot, or if the Commission has extended that period by a further 30 days, within that period. Where a ballot authorises various types of industrial action, a particular type of industrial action must be commenced within the 30 day period, in order for that industrial action to remain protected after the 30 day expires.[1]
Before protected industrial action can be taken the following steps MUST be completed:
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There has been a notification time in relation to the proposed enterprise agreement (bargaining has commenced)
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Application for a protected action ballot order made to Commission
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Protected action ballot order made by Commission
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Protected action ballot conducted by AEC (or alternative ballot agent)
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Protected action ballot results declared in affirmative by AEC (or alternative ballot agent)
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Notice of protected industrial action given to employer
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Protected industrial action able to be taken
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Related information
Who can take protected industrial action?
The Fair Work Act 2009 (Cth) (the Fair Work Act) sets out the basic requirements for who can take protected industrial action in a variety of sections. These sections can be summarised as follows:
To be eligible to take protected employee claim action an employee must:
- be in the group of employees specified in the protected action ballot order[2]
- be covered by the proposed enterprise agreement,[3] and
- either:
- be represented by a bargaining representative who is an applicant for the protected action ballot order, or
- be a bargaining representative for themself but also a member of a union (if that union is an applicant for the protected action ballot order);[4] and
- be eligible to be included on the roll of voters.[5]
If an employee is not eligible to vote, they will not be able to take protected industrial action.
An employee will be eligible to be included on the roll of voters for a protected action ballot after the protected action ballot order was made, but before the close of the roll of voters if they are otherwise eligible to vote in the protected action ballot (for example, because they are a new employee).[6]
References
[1] Asurco Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union [2010] FWA 8674 (O’Callaghan SDP, 10 November 2010); United Colleries Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) FCA 904 (14 July 2006).
[2] Fair Work Act ss.409(1)(b)(ii), 437(3)(a).
[3] Fair Work Act s.437(5)(a).
[4] Fair Work Act ss.437(5)(b), 453(b).
[5] Fair Work Act s.456.
[6] Explanatory Memorandum to Fair Work Amendment Bill 2012 at para. 198.
Updated time
Last updated
07 October 2019
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