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 Protected industrial action

Protected 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.

See Protected action ballots.

The 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 Employment 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.

Where 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.

Pt 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.