Fair Work Act 2009

Industrial action means action of any of the following kinds:

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;

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;

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;

the lockout of employees from their employment by the employer of the employees.

In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

However, industrial action does not include the following:

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

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

action by an employee 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.

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.

In this section, employee and employer have their ordinary meanings (see section 11).