WORKPLACE RELATIONS ACT 1996 - SECT 420 Meaning of industrial action

This legislation has been repealed.

WORKPLACE RELATIONS ACT 1996 - SECT 420

             (1)  For the purposes of this Act, industrial action means any action of the following kinds:

                     (a)  the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

                     (b)  a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

                     (c)  a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

                     (d)  the lockout of employees from their employment by the employer of the employees;

but does not include the following:

                     (e)  action by employees that is authorised or agreed to by the employer of the employees;

                      (f)  action by an employer that is authorised or agreed to by or on behalf of employees of the employer;

                     (g)  action by an employee if:

                              (i)  the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

                             (ii)  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.

Note 1:       See also subsection (4), which deals with the burden of proof of the exception in subparagraph (g)(i) of this definition.

Note 2:       The issue of whether action that is not industrial in character is industrial action was considered by the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited , PR946290. In that case, the Full Bench of the Commission drew a distinction between an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness.

             (2)  For the purposes of this Act:

                     (a)  conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that employees are required to perform in the course of their employment; and

                     (b)  a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.

Meaning of lockout

             (3)  For the purposes of this section, an employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts (except to the extent that this would be an expansion of the ordinary meaning of that expression).

Burden of proof

             (4)  Whenever a person seeks to rely on subparagraph (g)(i) of the definition of industrial action in subsection (1), that person has the burden of proving that subparagraph (g)(i) applies.