The Fair Work Act describes industrial action as any of the following:

• employees performing their work differently to the way it is normally performed, resulting in a limitation on, or delay in, the performance of the work
• employees placing a ban, limitation or restriction on the performance of work or the acceptance of work
• employees failing or refusing to attend or perform work
• employers locking out employees from their employment.

Industrial action does not include action taken by one party that is authorised or agreed to by the other party, or action based on a reasonable concern of an employee about an imminent risk to their health or safety.

The Fair Work Act distinguishes between ‘protected’ (lawful) industrial action taken during bargaining for a new enterprise agreement and ‘unprotected’ (unlawful) industrial action.

Protected industrial action is taken so that employees or employers can support or advance their claims during bargaining in relation to a proposed enterprise agreement.

For industrial action to be protected, a majority of employees must approve a list of proposed actions in a secret ballot process called a ‘protected action ballot’. The Commission can order a protected action ballot if satisfied that the employees’ bargaining representative has been and is genuinely trying to reach agreement with the employer.

The Commission may make orders to stop or prevent protected industrial action in specified circumstances. The Commission must suspend or terminate protected industrial action where it is endangering the life, personal safety, health or welfare of the population or part of it or is causing significant damage to the Australian economy. The Commission must, as far as practicable, determine these applications within five days of lodgment, or make an interim order suspending the action if this timeframe cannot be met.

Where industrial action, or threatened industrial action, is unprotected, an application can be made to the Commission to stop or prevent it. The Commission must determine these applications within two days of lodgment, or make an interim order stopping the action within two working days.

Performance

The number of applications in relation to industrial action decreased by 2 per cent, to 843 in
2018–19 from 863 in 2017–18, as shown in Table 24.

In 2018–19, the benchbook was viewed or downloaded 41,907 times.

Consistent with results in previous years, the most common types of applications lodged were applications for a protected action ballot order (69 per cent) and applications to extend the 30-day period in which industrial action is authorised by a protected action ballot (18 per cent). Applications for the variation or revocation of a protected action ballot order made up 6 per cent of cases in 2018–19, compared with 9 per cent in 2017–18.

In 2018–19, the Commission received 47 applications for an order to stop or prevent industrial action that is not (or would not be) protected industrial action. That total was lower than the 54 applications lodged in 2017–18 and shows a continuing overall decline in unprotected industrial action cases over a four-year period.

Table 24: Industrial action – applications lodged and finalised

Timeliness

To ensure that applications are dealt with quickly, Members may hear matters out of hours, including on weekends. If an application seeking an order that industrial action stop cannot be determined within two days, the presiding Member can issue an interim order.

In 2018–19, the Commission largely matched its performance in 2017–18, as shown in Table 25. While the time taken from lodgment to first hearing for an application for an order that industrial action stop increased by one day compared with 2017–18, performance still met the key performance indicator of two days.

Table 25: Industrial action – timeliness, protected action ballot orders and orders to stop action

Significant decision – when is industrial action protected?

On 7 November 2018, 128 Sydney bus drivers called in sick on the same day during negotiations for a new enterprise agreement. The number of employees absent on personal leave resulted in the bus company being unable to operate about 300 bus services, including bus services for school children.

The Commission found that the extraordinary number of drivers who took personal leave on that day indicated that they were engaged in a ‘covert campaign’, which satisfied the meaning of industrial action that was unprotected under the Fair Work Act.

The Commission issued interim orders against the 128 bus drivers, but later heard submissions from the Transport Workers’ Union of Australia on behalf of some of the drivers to support their reasons for taking leave. The Commission issued final orders that those who took unprotected industrial action could not be paid for their absence from work on 7 November 2018 and banned any industrial action until 30 November 2018.

The decision in Hillsbus Co. Pty Ltd v Gurdev Singh Bajwa & Others is at [2018] FWC 6861.