The Fair Work Commission (FWC) can issue orders to stop industrial action and restrict payment for employees during periods of industrial action, under the Fair Work Act 2009.

Examples of industrial action

  • Working a different way to how a job is usually performed
  • Practices that result in a restriction, limitation or delay in performing work
  • A ban, limitation or restriction on work performance or accepting work
  • Failing or refusing to attend or perform work.

If an employee refuses to perform work due to a reasonable concern for their immediate health or safety it isn't deemed to be taking industrial action. However, the employee mustn’t unreasonably fail to comply with your direction to perform other work that is safe – whether it’s at their usual workplace or another workplace.

Unprotected industrial action

An employee who participates in unlawful action that contravenes an order of the FWC or isn’t carried out in accordance with the Fair Work Act, is taking unprotected industrial action and may be exposed to liability.

You can respond to unprotected industrial action either by applying to the FWC for s418s Orders Stopping Industrial Action (known as ‘return to work’ orders) or notifying the FWC of the dispute and seeking recommendations (these are not binding).

If you need help lodging applications to the FWC, preparing statements as evidence or arranging representation at the tribunal, contact Master Builders’ Workplace Relations team.

Site safety stoppages

Site safety stoppages and disputation is complex, and legal solutions are often overlooked in favour of a temporary, quick fix.

Strike pay

It’s unlawful for you to pay wages (strike pay) to employees for a period of unprotected industrial action, under the Fair Work Act 2019.

You can only pay employees if the stoppage or industrial action has been authorised by you in writing in advance and is based on an imminent risk to their health or safety – provided they didn’t refuse to comply with a reasonable direction to do other work that is safe.

If the period of industrial action is equal to or less than four hours, you must deduct four hours pay. If the duration is more than four hours, you must deduct pay for the entire period.

If you want help responding to industrial activity, would like to access a Letter to Contractors template or need us to represent you at the FWC, contact Master Builders’ Workplace Relations team.

Need more information?

If you haven’t found the answer to your questions on our website, give us a call or email us.

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