Strikes & Industrial Action

Why does this right exist?

The right to take collective industrial action is grounded in Australia's obligations under international labour conventions, most notably the International Labour Organization's Freedom of Association and Protection of the Right to Organise Convention, 1948 (ILO Convention No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (ILO Convention No. 98), both ratified by Australia.

These conventions protect workers' rights to organise, bargain collectively, and take collective action in pursuit of workplace rights.

Australia's industrial action framework — federal and state — gives domestic effect to these obligations, while also placing procedural requirements around how and when that action can occur, generally through the lenses of economic prosperity, safety, and good order.

What is industrial action?

Industrial action refers to collective action taken by employees or employers in the context of a workplace dispute, typically during enterprise bargaining.

Under Fair Work rules, it includes:

• Employees performing work differently to how it is normally performed
• Employees adopting a practice that restricts, limits, or delays the performance of work
• A ban, limitation, or restriction by employees on performing or accepting work
• Employees failing or refusing to attend for work or perform any work
• An employer locking out employees from their workplace

State jurisidctions may have different laws, but generally the right to strike exists in all jurisdictions (except for some areas of the economy such as the military). 

Protected vs unprotected industrial action

This is the most important distinction. Industrial action is either protected or unprotected — and the consequences are very different.

Protected

Protected industrial action is lawful action that meets strict procedural requirements under the relevant legislation. Employees and their union cannot lawfully be penalised solely for participating in it, and employers cannot dismiss employees for taking part. Sometimes industrial actions of an employer are taken in response, but these are limited to things that are done according to the rules (so as to not be a reprisal). 

Unprotected

Unprotected industrial action is action taken outside those requirements. It exposes employees to disciplinary action, termination, financial penalties, and court orders to cease the action. Do not take unprotected industrial action without first understanding the risks.

How does industrial action become protected?

For National Systems Employees

Under the Fair Work rules (some States and Private Employees), protected industrial action is only available during bargaining for a new or renewedenterprise agreement, once the existing agreement has reached or is near its nominal expiry date or one doesn't exist yet.

The key steps are:

1. Bargaining must be underway — the employees and their union must be genuinely bargaining for a new enterprise agreement
2. A protected action ballot must be held — at least 50% of eligible employees must participate in the vote, and more than 50% must vote in favour of taking the action
3. Written notice must be given to the employer before any action commences — the required notice period depends on the type of action and must be confirmed with your industrial team before proceeding
4. The action must commence within 30 days of the ballot result being declared (extendable by a further 30 days in some circumstances)

For state system employees —

For example, state public sector workers in Queensland, New South Wales, Western Australia, South Australia, and Tasmania are covered by their respective state industrial relations legislation, not the Fair Work Act. The process for protected industrial action under these systems follows state law and may differ significantly from the federal process above.

In some State jurisdictions, industrial disputes can be raised not necessarily relating to collective bargaining, but these are usually brought directly to an industrial tribunal. The requirements for strike action relating to enterprise bargaining are usually the same. 

The right not to participate

No person is under any obligation to take part in industrial action — or to refrain from taking part — unless they choose to do so. Coercing someone into participating, or not participating, is unlawful under both federal and state industrial laws.

Employer responses

In response to employee industrial action, an employer may lock out employees — close the workplace and refuse to allow employees to attend for work. A lockout is also a form of industrial action and is subject to the same protected/unprotected framework.

The Fair Work Commission and State industrial tribunals also has the power to suspend or terminate protected industrial action within their jurisidiction if it threatens significant economic harm, endangers life or safety, or is otherwise contrary to the public interest.

Thinking about taking or joining industrial action?

The procedural requirements are strict, the consequences of getting it wrong are serious, and the right approach will depend on your jurisdiction, your employer, your current enterprise agreement, and the eligibility / scope of any protected industrial action (if already proposed or underway). If unsure, it's best to get help.

Are you already a subscriber?

Lodge a Member Support Form and our industrial team will assess whether unfair dismissal, general protections, or another pathway is right — and whether your claim falls under federal or state law.

→ Log in at member.redunion.com.au → find "Get Help?" → click "Member Support Form".

Not a member?

We can't assist with pre-existing issues, but if you'd like to understand your options going forward, you can try to book a 20-minute chat with our team. Please note this is a general overview of what might be available should you join — it is not industrial advice.

It's best to have your membership active in case a circumstance arises.

Ready to join?

To sign-up directly via the sign-up form: 

1. Visit the signup form relevant to your industry (Nursing / Midwifery | Allied Health | Education | Officer | Other | New Zealand);
2. Tick "Yes" when prompted about pre-existing issues;
3. Wait for the onboarding emails after that's received –>
4. You can fill in an Member Support Form (be sure to tick "Yes" to the pre-existing question – our teams expect honesty on forms).

Good to Know

You can't strike at any time –A common misconception is that workers can strike over any grievance at any time. In all industrial jurisdictions in Australia, industrial action is only protected if its done according to the rules – (for example, the Fair Work system specifically doesn't allow strike actions relating to general grievances unrelated to enterprise bargaining). If you have a different type of dispute, there may be another appropriate pathway to pressure employers, such as a general protections claim, unfair dismissal, proper grievance procedure, or a safety dispute. Lodge an MSF and our team will help identify the right option.

Health and safety withdrawals are different – Refusing to work due to a reasonable concern about an imminent risk to your health or safety is not industrial action under the Fair Work Act. You cannot be penalised for this. However, you must not unreasonably refuse a direction from your employer to perform other safe and appropriate work. If you're in this situation, lodge an MSF immediately.

Which system covers me? Most private sector employees are covered by the Fair Work Act. State and local government employees in most states operate under separate state industrial legislation with their own rules around industrial action. If you're unsure which system applies to you, we can help you figure this out. 

Needs updating?

Please let our team know if this article seems out of date — we're always looking to improve.