Common law
Federal industrial legislation
Other legislation
Industrial action has always been a particularly contentious aspect of the industrial relations process. In legal terms, virtually all industrial action is unlawful. Almost all such action is unlawful as either or both a tort and a breach of contract. In many instances, it will also be unlawful under statute.
See Liability in contract and tort.
Despite their very broad scope, the common law liabilities have never been extensively relied upon in practice, and the Fair Work Act 2009 (Cth) (FW Act) now provides protection against such liability in certain circumstances. Nevertheless, the torts can be of continuing relevance in relation to unprotected industrial action, even though chief reliance tends to be placed upon statutory remedies such as those provided under s 418 of the FW Act and s 45D of the Competition and Consumer Act 2010 (Cth).
This means that those who organise or participate in such action are almost invariably exposed to liability in contract, tort, and under statute. This would place workers and unions in a very weak position in the context of collective bargaining, and helps explain why most common law jurisdictions have introduced some form of statutory protection against legal exposure in connection with organising or participating in industrial action.
The principal form of employer industrial action is the lockout. That is, the exclusion of all or part of the workforce from the workplace, either as a pre-emptive tactic by the employer to exert pressure upon employees/unions with whom they are in dispute, or as retaliation for some form of industrial action (such as a partial work-ban) undertaken by employees.
Virtually all industrial action is unlawful as either, or both a breach of contract or a tort. (See Liability in contract and tort) It follows that, in principle, an employer (or other party) who has been the target of industrial action can seek damages to compensate for any loss they may have suffered in consequence of the unlawful conduct and/or may seek injunctive relief to prevent the unlawful conduct from commencing or continuing (as the case may be).
The FW Act now provides protection against common law and statutory liability in respect of protected industrial action. Nevertheless, common law remedies are of continuing relevance in relation to unprotected industrial action and other unlawful action, even though chief reliance tends to be placed upon statutory remedies such as those provided under s 418 of the FW Act.
An employer that has been the target of industrial action may suffer substantial loss as a consequence — especially where the action has been extensive and/or prolonged. In principle such damages would be calculated in accordance with normal common law principles and would be intended to place the employer as nearly as possible in the position they would have been in had the wrongful conduct not occurred. Punitive and/or exemplary damages may also be available in some instances.
Employers faced with ongoing or threatened unprotected industrial action are likely to accord a higher priority to ensuring that the action stop/not commence than to recovering damages if and when it does occur.
This helps explain why most common law cases concerning unprotected industrial action consist of an application for an interlocutory injunction to restrain action which is already occurring, or to prevent threatened or apprehended action from commencing. In cases of special urgency, relief may be obtained on an ex parte basis — ie, in the absence of the other party.
Part 3-3 of the Fair Work Act 2009 (Cth) (FW Act) enshrines the right of employees to take protected industrial action to support or advance claims for a proposed single enterprise agreement, as well as the right of employers to take protected industrial action in response to employee action.
Those who participate in protected action are immune from any action under any law in force in a state or territory. This is subject to the qualification that protection does not extend to industrial action that involves:
- •personal injury
- •wilful or reckless destruction of, or damage to, property
- •unlawful taking, keeping or use of property; or
- •defamation.
The FW Act contains detailed provisions on what constitutes ‘protected industrial action’, and indeed ‘industrial action’, for the purposes of the Act.
See What constitutes industrial action?
See Types of protected industrial action
See Common requirements for protected industrial action
See Effect of industrial action being protected
See Commencing protected industrial action (employees).
Protected action ballotsProtected employee action under the FW Act needs to be authorised in advance by a protected action ballot. This is a democratic process whereby employees can vote on whether to take industrial action in relation to a proposed agreement.
Detailed provisions as to the circumstances in which ballots can be ordered, and as to the manner in which they are to be conducted are set out in Div 8 of Pt 3-3 and the accompanying regulations.
Terminating or suspending protected actionThe FW Act provides that protected industrial action can be suspended or terminated on a number of grounds:
- •that the industrial action is causing or threatening to cause significant economic harm to the employer(s) and/or the employees who will be covered by the proposed agreement
- •that the industrial action has threatened, is threatening or would threaten ‘to endanger the life, the personal safety or health, or the welfare of the population or of part of it’ or ‘to cause significant damage to the Australian economy or an important part of it’
- •that the Fair Work Commission (FWC) considers that it would be appropriate to suspend the industrial action because it would help the parties to reach an agreed outcome; or
- •that the industrial action is ‘adversely affecting’ the employer, and is causing or threatening to cause ‘significant harm’ to a third party, and the suspension would be appropriate in the public interest.
In addition, the Minister for Jobs and Industrial Relations can terminate industrial action where she is of the opinion that the industrial action is threatening or would threaten ‘to endanger the life, the personal safety or health, or the welfare of the population or of part of it’ or ‘to cause significant damage to the Australian economy or an important part of it’. This power has never been used in practice.
See Terminating or suspending protected action.
Industrial action related workplace determinationsWhere industrial action has been terminated on any of the grounds above, the FWC may, subject to certain preconditions, make an industrial action related workplace determination. This has the effect of imposing an arbitrated settlement upon the parties.
An industrial action related workplace determination operates with similar effect to an enterprise agreement — it determines the terms and conditions of employment for those employees to whom it applies, prevailing over the relevant modern award.
See Industrial action related workplace determinations.
Prohibition of payments during periods of industrial actionPt 3-3 Div 9 of the FW Act makes it unlawful for an employer to pay, or an employee to accept; or a union or employees to seek, payment of wages in respect of any period when employees are engaged in industrial action (whether protected or unprotected). It also makes special provision for situations where employees are engaging in industrial action short of a strike (overtime and partial work bans), and where unprotected action lasts for less than 4 hours.
See Prohibition of payments during periods of industrial action.
While not strictly “industrial” in character, there are a number of pieces of legislation which nevertheless have the potential to give rise to legal liability for those who organise or engage in industrial action in certain circumstances.
In particular, we will be looking at:
- • the anti-competitive conduct provisions now set out in ss 45D–45EB of the Competition and Consumer Act 2010 (Cth) (see Competition law);
- • s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) which prohibits organising or engaging in certain unprotected industrial action related to building work (see Building industry legislation); and
- • the various State and Federal “essential services” legislation (see Essential services laws).
