Unprotected industrial action – payments

See Fair Work Act s.474

If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the following applies:

• where the period of the industrial action taken is less than 4 hours on that day, the employer must withhold 4 hours payment from the employee, or
• if the period of the industrial action is 4 or more hours on that day, the employer must withhold payment for the total duration of the industrial action.

For example:

• if an employee takes unprotected industrial action for 2 hours – the employer must withhold payment for 4 hours, or
• if an employee takes unprotected industrial action for 5½ hours – the employer must withhold payment for 5½ hours.

Compliance with s.474 by employers is not voluntary. Failure to comply with s.474 may attract the imposition of a civil penalty, and further, an employer which unlawfully permits its employees to engage in non-protected industrial action without any consequence in terms of loss of pay should not be surprised that such employees repeatedly resort to the use of such industrial action as a pressure tactic when industrial disputes arise.[1]

Exception – Imminent risk to health or safety

If employees take action related to issues about workplace health and safety, the action is not considered industrial action if:

• the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety, and
• the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.[2]

As a result the prohibition of payment to an employee, as set out in s.474 of the Fair Work Act, does not apply.[3]

Wages cannot be deducted in reliance on s.474 of the Fair Work Act for taking action if that action meets the requirements of s.19(2) of the Fair Work Act.

Overtime bans

However, if the industrial action is, or includes, an overtime ban, s.474 does not apply, in relation to a period of overtime to which the ban applies, unless:

• the employer requested or required the employee to work the period of overtime, and
• the employee refused to work the period of overtime, and
• the refusal was a contravention of the employee's obligations under a modern award, enterprise agreement or contract of employment.

Note: An employee is able to refuse to work additional hours if they are unreasonable.[4] There may be other circumstances in which an employee can lawfully refuse to work additional hours.

If:

• the industrial action is, or includes, an overtime ban, and
• section 474 applies in relation to a period of overtime to which the ban applies;

then, for the purposes of section 474:

• the total duration of the industrial action is, or includes, the period of overtime to which the ban applies, and
• if the total duration of the industrial action on that day is less than 4 hours - the period of 4 hours includes the period of overtime to which the ban applies.

If:

• the industrial action is during a shift (or other period of work), and
• the shift (or other period of work) occurs partly on one day and partly on the next day;

then, for the purposes of this section, the shift is taken to be a day and the remaining parts of the days are taken not to be part of that day.

Overtime is taken not to be a separate shift.

Example

An employee, who is working a shift from 10 pm on Tuesday until 7 am on Wednesday, engages in industrial action that is not protected industrial action from 11 pm on Tuesday until 1 am on Wednesday. That industrial action would prevent the employer making a payment to the employee in relation to 4 hours of the shift, but would not prevent the employer from making a payment in relation to the remaining 5 hours of the shift.

See Fair Work Act s.475

An employee must not ask for, or accept, a payment from an employer if the employer would contravene the prohibition of payment to an employee in s.474 of the Fair Work Act, by making the payment.

A union, or an officer or member of a union, must not ask an employer to make a payment to an employee if the employer would contravene s.474 of the Fair Work Act by making the payment.

See Fair Work Act s.476

If an employee engaged, or engages, in industrial action against an employer, these provisions of the Fair Work Act do not affect any right of the employer, under the Fair Work Act or otherwise, to do anything in response to the industrial action that does not involve payments to the employee.

This includes the rights that the employer has under common law or by taking employer response action or standing down the employee.[5]