Know Your Rights: The right to strike in 2025
The right to strike is regarded internationally as a fundamental worker's right, essential for securing equitable wages, safe workplaces, and just treatment. It allows workers to collectively advocate for fair conditions by being able to withdraw their labour if necessary.
This right is strongly upheld in global labour laws, including International Labour Organisation (ILO) conventions.
However, in Australia this entitlement has been actively undermined by federal governments for decades, and many of us, especially younger union members, are unfamiliar with what they can and cannot do to further a campaign for better pay and conditions if negotiations reach an impasse.
In Australia, the right of workers to engage in industrial action, including strikes, is primarily governed by the federal Fair Work Act 2009 (FW Act). This legislation outlines specific conditions under which industrial action is deemed lawful, commonly referred to as "protected industrial action."
The whole concept of ‘protected’ and ‘unprotected’ industrial action is relatively recent, and was not legislated until the 1990s. Arguably, the ‘protection’ of industrial actions that directly related to Agreement negotiations was primarily designed to restrict prevent cross-union solidarity strikes and industrial campaigns on broader social issues. This included world-first anti-apartheid bans by Australian dockworker unions on the unloading of South African ships in 1959 and the famous union ‘green bans’ in the 1970s and 1980s which helped save landmarks such as the Queen Victoria Market from demolition.
‘Protected’ Industrial Action
Protected industrial action is legally sanctioned and shields participants from certain civil or criminal liabilities. For industrial action to attain protected status under the FW Act, the following criteria must be met:
Bargaining Period: The action must occur during negotiations for a new Enterprise Agreement. Industrial action taken outside this context is generally unlawful.
Protected Action Ballot Order (PABO): Employees, typically through their union, must apply to the Fair Work Commission (FWC) for a PABO. This order authorises a ballot among employees to vote on whether to proceed with industrial action.
Majority Support: A majority of eligible employees must vote in favour of the proposed industrial action in the ballot.
Notice Requirements: Employees are required to provide their employer with at least three working days' notice before commencing industrial action.
Compliance with these steps ensures that the industrial action is protected, granting legal immunity to participants and their union from specific repercussions.
‘Unprotected’ Industrial Action
Industrial action that does not meet the FW Act's criteria is considered unprotected. Participants in unprotected industrial action may face various penalties, including:
Financial Penalties: Both employees and unions can be fined for engaging in unlawful industrial action.
Compensation Claims: Employers may seek compensation for losses incurred due to the unprotected action.
Dismissal: Employees participating in unprotected industrial action may risk termination of employment.
Role of Unions and
Collective Bargaining
Unions play a pivotal role in advocating for workers' rights, including organising industrial actions. The collective power of union membership provides leverage in negotiations, aiming to secure fair wages, improved working conditions, and professional respect.
However, the stringent requirements for protected industrial action under the Fair Work Act present challenges and very significant hurdles. While recent reforms under the Albanese government have gone a small way towards addressing bargaining power imbalances, particularly for union members seeking to negotiate multi-employer Agreements, we have a long way to go. Australia still has amongst the harshest restrictions on the rights of workers to take industrial action of all OECD countries and has frequently been criticised by the ILO for its failure to comply with internationally recognised obligations to protect the right to withdraw labour.
As you will read in the centre pages of this edition, the right to take industrial action is an important factor in the union’s campaign for better salaries and conditions in Victorian Catholic education.