Unprotected Industrial Action in Australia: Employer Essentials

Industrial action can disrupt your operations, impact customer relationships and put real pressure on your cash flow - especially if you run a lean small business.

When that action is unprotected, your legal options are very different compared to when it’s protected under the Fair Work framework. Knowing the difference, and how to respond quickly and lawfully, can save you time, money and risk.

In this guide, we break down what unprotected industrial action means in Australia, how it differs from protected industrial action, and the practical steps you can take to manage it while minimising legal exposure.

What Is Unprotected Industrial Action (For Employers)?

Industrial action is any action taken by employees (or employers) to disrupt work in connection with a workplace dispute - for example, a strike, a partial work ban, or employees refusing overtime. The Fair Work Act sets strict rules for when that action is “protected.”

Unprotected industrial action is industrial action that does not meet the legal requirements to be protected.

Common examples include:

• Stopping work or refusing to perform duties without a valid protected action ballot and required notices.
• Taking action outside a bargaining period or for reasons unrelated to enterprise bargaining.
• Engaging in safety-related stoppages where there is no reasonable concern about an imminent risk to health or safety.
• Disruptions or bans during the life of an enterprise agreement (unless permitted by the agreement or law).

From an employer’s perspective, the key point is this: if the action is unprotected, you may have access to remedies that aren’t available when action is protected - but you still need to follow a fair and lawful process.

How Is It Different From Protected Industrial Action?

Protected industrial action occurs within a tightly regulated process tied to enterprise bargaining. Typically, it requires a protected action ballot, valid notices and compliance with any orders made by the Fair Work Commission (FWC). When action is protected, employees are immune from certain civil liabilities, and you cannot take adverse action against them because they participated in that protected action.

By contrast, unprotected industrial action does not have these legal protections. This means:

• You can apply to the FWC for stop or prevent orders to halt the action.
• You may be able to deduct pay for the period employees refuse to work normal duties.
• You can consider disciplinary action if appropriate - provided you follow a procedurally fair process and avoid adverse action based on a prohibited reason.
• You may have access to civil remedies for loss if the action breaches contractual or other legal obligations.

Even so, caution is essential. Missteps - such as rushing to dismiss without a fair process - can expose your business to unfair dismissal claims. Understanding how decision-makers assess fairness, including factors considered under unfair dismissal criteria, will help you manage risk.

Common Scenarios Small Businesses Face

For small employers, unprotected industrial action often looks like day-to-day disruptions rather than headline-grabbing strikes. You might see:

• Ad hoc refusals to work scheduled shifts or overtime during a rostering dispute.
• Partial work bans (e.g. staff attending work but refusing key tasks) outside a formal bargaining process.
• Coordinated “go slow” periods that significantly affect customer delivery times.
• Short-notice walkouts after a disagreement with a supervisor.

These situations can escalate quickly. Your first priorities are to keep people safe, stabilise operations, and decide on a measured legal response.

What Can You Do If Staff Take Unprotected Industrial Action?

Here’s a practical, step-by-step way to respond while keeping your legal footing.

1) Confirm What’s Happening (And Whether It’s Unprotected)

Gather the facts. What work is being stopped or limited? Who is involved? Is there an enterprise bargaining process on foot? Has any notice been given?

If you’re unsure whether the action is protected, get advice quickly. Your response may differ markedly depending on that threshold question.

2) Communicate Clearly And De-Escalate Where Possible

Early, respectful communication can prevent the situation from hardening. Explain your understanding of the facts, invite employees to outline their concerns, and offer to meet. Keep written records of communications.

It can help to remind staff of contractual obligations and any relevant policies in place (for example, a dispute resolution procedure in your Workplace Policy).

3) Keep People Safe And Manage Operations

Take reasonable steps to ensure safety during any disruption. If partial bans or stoppages create WHS risks, temporarily reassign tasks, isolate equipment, or send people home if necessary.

Where appropriate, you may consider a temporary stand down if there’s a stoppage of work you can’t reasonably avoid and you can’t usefully employ affected staff. Standing down is a complex decision. If you’re considering this option, review your obligations and see our guidance on standing down an employee before acting.

4) Consider Applying For FWC Orders

If the action is unprotected, you can apply to the Fair Work Commission for orders to stop or prevent it. These orders can be a fast way to restore stability, and breaching them can carry serious consequences.

Be ready to provide evidence about the impact on your business and why the action is unprotected. Keep your documentation tight and factual.

5) Manage Pay And Deductions Lawfully

As a general principle, employees are not entitled to be paid for the period they refuse to perform their normal duties during unprotected industrial action.

However, you should handle deductions carefully. There are strict limits on when and how you can make deductions from wages. Review your obligations around withholding pay and the rules about lawful deductions before you process any payroll changes.

6) Use A Fair Process For Any Disciplinary Action

If you believe disciplinary action is warranted, follow a procedurally fair process to reduce legal risk. This usually means putting concerns in writing, providing an opportunity to respond, and considering that response before making a decision.

Issuing a well-drafted show cause letter and using the right termination documents can make a significant difference to outcomes. If things do escalate, have the right employee termination documents ready and ensure decision-makers understand how unfair dismissal is assessed.

7) Avoid Adverse Action And Discrimination Risks

Even where employees engage in unprotected industrial action, you must not take adverse action against them for a prohibited reason (for example, because they exercised a workplace right unrelated to the unprotected action). Keep your decision-making focused on conduct and operational impact, not on attributes or protected activities.

Managing Pay, Deductions And Rosters Lawfully

Getting pay decisions right during a disruption is critical for trust and compliance.

• Pay for work performed: If employees perform some work but refuse specific tasks, assess whether useful work was performed during the relevant period. Partial work bans can be complex; seek advice if needed.
• No pay for unprotected stoppages: Where employees refuse to perform their normal duties due to unprotected action, they are not entitled to payment for that period. Document the duration and nature of the stoppage.
• Lawful deductions only: If considering any deduction, ensure it fits within the narrow categories of permitted deductions. Double-check your obligations under the rules for lawful deductions.
• Rosters and hours: If you need to change rosters temporarily to maintain operations, follow your Award or agreement and consultation obligations. Our guide on changing employee rosters outlines the key steps and risks.

Transparent explanations to staff - including how you’ve calculated any non-payment for unprotected action - can reduce disputes and build credibility.

Prevention Is Better Than Cure: Contracts, Policies And Workplace Culture

Many industrial disputes are avoidable with strong foundations. The right documentation and consultation habits won’t remove all risk, but they make disruptions less likely and easier to resolve.

Use Clear, Compliant Employment Contracts

Every employee should have a tailored, up-to-date Employment Contract that clearly sets out duties, hours, remuneration, dispute resolution and any applicable flexibility or rostering arrangements. Clear expectations reduce misunderstandings and give you a stronger footing if you need to manage performance or conduct.

Adopt Practical Workplace Policies

Policies align expectations across your team and help you respond consistently during a dispute. Consider a Workplace Policy covering conduct, dispute resolution, communication protocols, safety procedures and, where relevant, site access and equipment use.

If rostering is a flashpoint in your industry, proactively engage staff on how rosters are set, the notice you’ll provide, and how you’ll handle change - then mirror those commitments in your policies and compliant roster practices.

Know Your Award Or Enterprise Agreement

Most small businesses are covered by a modern award. Understand consultation obligations, rostering rules, overtime triggers and dispute resolution procedures. When you apply the instrument consistently, you reduce grievances that can snowball into disruptive action.

Consult Early When Change Is Coming

Changes to hours, roles or processes should be flagged early and handled transparently. Genuine consultation gives employees a voice and often surfaces workable compromises before positions harden.

Train Supervisors To De-Escalate

Frontline leaders often see issues first. Equip them to address concerns early, keep records, and escalate emerging risks to HR or management before they become collective action.

Employer Lockouts, Stand Downs And Other Response Options

Employers also have industrial action tools - but they must be used lawfully.

• Employer lockouts: A lockout can be protected in certain bargaining circumstances if strict requirements are met. Outside those circumstances, a lockout may be unprotected and expose you to liability. Always get advice before locking employees out.
• Stand downs: You may be able to stand employees down without pay if there’s a stoppage of work you can’t reasonably be held responsible for and you can’t usefully employ affected staff. Because the legal test is technical, revisit the guidance on standing down and check your Award or agreement before acting.
• Discipline or termination: If the action and conduct justify discipline, follow a fair, documented process using appropriate notices and decision-making. Keep the right termination documents on hand and be mindful of the factors relevant to unfair dismissal.

In every case, match the response to the risk, keep records, and avoid knee-jerk decisions that could undermine your legal position.

Practical Documentation You Should Have Ready

Having your paperwork in order helps you respond quickly and confidently if unprotected action arises. Key documents include:

• Employment Contract: Clear duties, hours, remuneration, dispute resolution and flexibility provisions all reduce ambiguity and help in any disciplinary process (see Employment Contract).
• Workplace Policy: A simple set of policies on conduct, WHS, dispute resolution, communication and access protocols makes your expectations visible and consistent (see Workplace Policy).
• Show Cause Letter Templates: Structured letters help you put allegations to employees clearly and invite a response before any decision (see show cause letters).
• Termination Documents: If a matter escalates, you’ll need compliant notices and records to support your decisions (see termination documents).
• Rostering Procedures: Document how rosters will be set and changed, consistent with Award rules, so you can rely on them if a dispute emerges (cross-check with your roster obligations).

Not every business will need the same level of documentation, but most small employers benefit from having these basics ready before any dispute brews.

When Should You Get Legal Help?

Seek advice promptly if:

• There’s any doubt whether the action is protected or unprotected.
• You’re considering payroll deductions, a stand down, a lockout, or applying to the FWC for orders.
• You’re weighing disciplinary action or termination and want to reduce unfair dismissal or general protections risk.
• There are safety concerns, picket lines, or threats of damage or interference with suppliers or customers.

A short consultation can help you choose the right option, prepare the right documents, and avoid the pitfalls that lead to costly claims. If rosters are part of the issue, review your approach against the rules for changing rosters so any operational response stays compliant.

Key Takeaways

• Unprotected industrial action is action that doesn’t meet the legal requirements to be protected - your response options are broader, but you must still follow a fair process.
• Move quickly to verify the facts, communicate clearly, keep people safe and stabilise operations while you assess legal options.
• Consider FWC stop or prevent orders and manage pay carefully, using only lawful deductions and clear records of any non-payment for unprotected stoppages.
• If discipline is appropriate, use a procedurally fair process with clear notices and the right documentation to reduce unfair dismissal and adverse action risks.
• Prevention helps: clear Employment Contracts, practical Workplace Policies and compliant rostering practices make disputes less likely and easier to resolve.
• Get legal help early if you’re unsure whether action is protected, or before standing down staff, changing pay, or taking disciplinary steps.

If you’d like a consultation on how to manage unprotected industrial action at your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.