Strike action can cause a lot of uncertainty for Australian business owners and managers. Whether you’re running a small business or leading a larger company, facing industrial action from your workforce isn’t just disruptive – it can be daunting from both a business and legal perspective. With industrial relations in the spotlight more than ever, employers need to understand how strike action works under Australian law, what your obligations are, and the practical steps to managing workplace disputes if they arise.
Strikes can feel out of your control, but with the right knowledge and some proactive planning, you can reduce risk, maintain fair workplace practices, and resolve issues efficiently. In this guide, we’ll walk you through what strike action really is, your legal rights and responsibilities as an employer, key compliance steps, and how to respond if strike action affects your business. We’ll also outline the essential legal documents and policies that will help you prepare for industrial relations issues and protect your business in the long run.
If you’re worried about how strike action could impact your workplace, keep reading for clear, practical advice you can act on straight away – and remember, we’re here to help with guidance personalised to your situation.
What Is Strike Action Under Australian Law?
Strike action – often just called a “strike” – means a group of workers (usually union members) refuse to work, either by stopping work entirely or by taking other forms of industrial action, as a way to resolve disputes over pay, conditions, or other workplace matters. It’s one tool in the broader area of “industrial relations,” and in Australia, it’s governed mainly by the Fair Work Act 2009.
Strike action can include:
- Refusing to attend work (full stoppage)
- Working at a reduced rate (e.g. “go-slow” action)
- Refusing to do certain tasks (selective bans)
- Other concerted activities designed to disrupt normal operations (like refusing overtime)
Not all industrial action is legally protected, so it’s important to understand the distinction between a protected action (which is lawful) versus unprotected action (which can expose workers to penalties and employers to specific remedies). Only certain types of strike action – taken at specific times in the bargaining process, and following legal notice requirements – are protected under law. We’ll break these down in more detail below.
When Is Strike Action Legal in Australia?
Most business owners and managers are surprised to learn that it’s not always lawful for workers to walk off the job. In fact, the Fair Work Act only permits strike action under specific circumstances, known as “protected industrial action.”
What Is Protected Industrial Action?
Protected industrial action refers to strikes (or other action) that are taken:
- For a new enterprise agreement (not an existing one)
- After the current enterprise agreement has passed its nominal expiry date
- During a lawful bargaining period, after attempting to reach agreement
- After following all correct notice and ballot procedures as set by the Fair Work Commission (FWC)
If workers comply with these rules, the action is protected – meaning the law shields them from certain types of claims or penalties (for example, you generally can’t dismiss an employee for taking protected strike action).
What Is Unprotected Industrial Action?
Unprotected industrial action is any strike activity that doesn’t meet those strict legal requirements – such as strikes over existing agreements, or wildcat strikes (action taken without following legal procedures). Unprotected actions can have serious consequences, including potential disciplinary action and liability for loss or damages for both employees and the union. Employers may be able to apply to the FWC to stop or prevent unprotected action, and in some cases, damages may be sought.
You can read more about managing employee obligations and compliance with the duty of care as an employer in our dedicated guide.
What Triggers Strike Action?
Strike action usually arises from a breakdown in bargaining between workers (often represented by a union) and an employer. Common triggers include:
- Disputes over pay and conditions during enterprise bargaining
- Change in shift patterns or rosters
- Job security concerns (redundancies or restructuring)
- Health and safety risks
- Alleged breaches of agreement or unfair practices
As an employer, understanding these triggers can help you anticipate potential conflict points and proactively address them before a dispute escalates to strike action.
How Do I Respond If My Staff Go on Strike?
Facing strike action can be stressful – but being prepared legally as well as practically can help you manage the situation with confidence.
- Check if the strike is protected or unprotected by reviewing the timing, notice given, and whether it is part of a lawful enterprise bargaining process.
- If unsure, seek legal advice promptly to avoid acting unlawfully (such as dismissing a protected striker).
- Maintain clear, calm communication with employees, unions, and affected clients or customers.
- Plan for temporary changes in operations (roster adjustments, bringing in casual/contract workers if appropriate and lawful, pausing certain business activities, etc.).
- Keep full records of events, any communication, and the business impact.
Legal Restrictions During Protected Strike Action
During protected industrial action, employers:
- Cannot threaten or dismiss employees for participating in protected strike action
- Are generally not obliged to pay employees for time spent on strike (“no work, no pay”)
- May lock out employees (exclude workers from the workplace) in response to protected industrial action, provided legal requirements are met
- Can apply to the Fair Work Commission for orders to suspend or terminate industrial action in certain circumstances (e.g. serious risk to health and safety)
After the Strike: Getting Business Back on Track
- Work towards restoring workplace relationships and morale
- Assess any lessons learnt to prevent future disputes
- Review or update your workplace policies, agreements, and contracts
- Make sure everyone is clear on entitlements moving forward to avoid further disruption
Effective management of industrial action is about balancing business continuity with your legal and ethical obligations as an employer. If the situation feels unmanageable, getting early legal support can help minimise disruption and risk.
What Are My Legal Obligations During Strike Action?
If strike action occurs, both employers and employees have specific rights and obligations, set out in the Fair Work Act and any relevant enterprise or workplace agreements. Here’s what employers must keep top-of-mind:
Pay and Entitlements During Strikes
- Generally, you don’t have to pay employees for the duration of industrial action (including protected strikes), but their other rights (leave accrual, superannuation) remain intact during periods not on strike.
- Employees can't be forced to take annual leave to cover periods of protected strike action.
- Record keeping is vital for correctly tracking pay and leave.
Learn more about termination pay and pay entitlements in our comprehensive guides.
Dealing With Unions and Collective Bargaining
- Employers must bargain in good faith with employee representatives and unions during enterprise agreement negotiations.
- Retaliation (such as unfair dismissal or other adverse action) against workers for participating in protected action is unlawful and can lead to significant penalties.
- You are required to participate genuinely in bargaining and dispute resolution processes, including those facilitated by the Fair Work Commission.
Having clear processes for dispute resolution makes it easier to address issues before they escalate into strike action.
Occupational Health and Safety
- Employers have ongoing obligations to provide a safe workplace, regardless of whether strike action occurs.
- It’s important to monitor and manage any safety risks that arise as a result of industrial action (including for remaining staff or customers).
Read more about duty of care for employers and workplace health and safety responsibilities.
How Can I Minimise the Risk of Strike Action?
While you can’t always prevent strike action, proactive workplace strategies reduce the likelihood and impact of industrial disputes. Consider the following:
- Foster open, two-way communication with staff and any relevant unions or representatives.
- Conduct regular workplace surveys or feedback sessions – early detection of brewing issues can allow you to address them before escalation.
- Maintain fair, up-to-date employment agreements and policies, including clear processes for dispute resolution.
- Stay compliant with all award and enterprise agreement obligations, including working conditions, pay, rosters and termination procedures.
- Ensure managers and supervisors are trained in fair workplace practices and managing grievances sensitively.
Having clear, legally-sound documents in place isn’t just good practice – it’s a key way to protect your business if a dispute emerges. You can find more about essential employment agreements and workplace documents in our resource guides.
What Legal Documents Should I Put in Place?
Having the right workplace documents isn’t just about compliance – it’s also about giving staff confidence that issues will be managed fairly, and minimising the risk of disputes escalating.
Key legal documents employers should consider include:
- Employment Contracts: Clearly set out pay rates, duties, hours, and conditions for each staff member. A written contract makes everyone’s rights and expectations clear from day one. Learn more about employment contracts here.
- Enterprise Agreements or Workplace Policies: For larger businesses or those with unionised staff, an enterprise bargaining agreement will cover collective pay and entitlements. For others, comprehensive in-house policies are vital.
- Dispute Resolution Procedures: Documented steps for resolving grievances or disputes internally can head off strikes before they start by providing staff with an alternative route for their issues to be heard.
- Fair Work Information Statement and Notices: Ensure staff are provided with the right information about their rights under the Fair Work Act as required by law.
- Occupational Health and Safety Policy: Demonstrate your commitment to worker safety and compliance with WHS obligations.
- Termination and Redundancy Documents: Having up-to-date processes and templates for managing terminations, redundancies, or changes in employment reduces the risk of disputes escalating to industrial action. Read more about redundancy and termination here.
You may also need to tailor your documents to comply with any relevant Modern Award or enterprise-specific legal requirements. If in doubt, speak with a legal expert to get on the right track.
What Are the Risks for Employers When a Strike Happens?
There’s no sugarcoating it: strike action can be disruptive and sometimes damaging, especially for small and medium businesses.
Some potential risks include:
- Loss of productivity and revenue if work stops or slows down
- Cancelled customer orders or services
- Damage to business reputation if strike becomes public or protracted
- Possible legal liability for failing to comply with industrial relations or safety laws
- Staff morale issues, even once the strike ends
Proactively managing your workplace, having legal policies in place, and seeking early advice if industrial issues arise can help you to reduce these risks and resolve disputes before they escalate.
How Do I Stay Compliant With Industrial Relations Laws?
Compliance is multi-layered when it comes to workplace disputes and strike action. As an employer, you need to:
- Understand your obligations under the Fair Work Act 2009 and any enterprise agreements or awards that apply
- Keep thorough employment and pay records, including during periods of strike action (see more on employee entitlements)
- Participate in good faith bargaining if negotiating with employees/unions
- Avoid retaliating or discriminating against staff for lawful participation in protected strike action
- Ensure all changes to workplace conditions, shifts, pay or duties are done in compliance with existing agreements or legal consultation requirements (see more about shift changes here)
Keeping up with your responsibilities isn’t always easy, especially if you’re facing a live dispute. Many employers find that having specialist legal support on call is the most efficient way to avoid costly missteps.
Key Takeaways
- Strike action is a key part of Australian industrial relations, but only certain types of strike action (protected action) are lawful under the Fair Work Act 2009.
- Employers have clear rights and responsibilities during strike action, including when it comes to pay, employee management, and health and safety.
- Proactive communication, compliance with workplace laws and agreements, and clear internal policies help reduce the risk of industrial action disrupting your business.
- Having the right workplace documents in place – like employment contracts, dispute resolution policies, and up-to-date agreements – is essential before, during, and after a strike.
- If you’re unsure how to respond to strike action or industrial relations issues, seeking legal guidance early can help protect your business and reputation.
If you’d like a consultation on managing strike action or need help with industrial relations laws for your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
