What is protected industrial action?
Protected industrial action is lawful action — like a strike — taken during enterprise bargaining that meets the conditions in the Fair Work Act.
Protected industrial action is industrial action — such as a strike, a work ban, or a stoppage — that is lawful because it meets the conditions set out in the Fair Work Act 2009. When action is protected, the participants generally have immunity from legal claims (such as for breach of contract) that might otherwise arise.
To be protected, the action must be taken during bargaining for a proposed enterprise agreement, the agreement must not have passed its nominal expiry date, the parties must have been genuinely trying to reach agreement, and a protected action ballot must have authorised the action by a majority vote. Employees must also give the employer the required written notice (generally at least 3 working days) before the action starts.
Key facts
- •Lawful industrial action taken during enterprise bargaining under the Fair Work Act 2009
- •Gives participants immunity from most civil legal claims while the action is protected
- •Requires a successful protected action ballot authorising the action by majority vote
- •Generally needs at least 3 working days' written notice to the employer before it starts
- •The Fair Work Commission can suspend or terminate action that causes significant harm
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Can I be sacked for taking protected industrial action?
No. It is unlawful for an employer to take adverse action — including dismissal — against an employee for engaging in lawful protected industrial action. Doing so can breach the general protections provisions of the Fair Work Act.
Does my employer have to pay me during protected industrial action?
Generally no. Employers must not pay employees for periods they are taking certain protected industrial action, such as a strike. For partial work bans, payments may be reduced in proportion to the work not performed.
FairWork Mate is an independent commercial service. We are not affiliated with, endorsed by, or associated with the Fair Work Ombudsman, the Fair Work Commission, or any Australian Government agency. Content is general information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.