Document ID: chunk:federal_register_of_legislation:C2007C00183:clause:1_108
Version: federal_register_of_legislation:C2007C00183
Segment Type: clause
Provision Reference: sch 1 cl 108
Character Range: 391311–394014

108  Protected action

General

 (1) Action by a person is protected action if:
 (a) the action is protected action under subsection (2) or (3); and
 (b) no provision of Subdivision B excludes the action from being protected action; and
 (c) subsection 107K(3) does not exclude the action from being protected action.

Employee and employee organisation actions

 (2) During a bargaining period:
 (a) an organisation of employees that is a negotiating party; or
 (b) a member of such an organisation who is employed by the employer; or
 (c) an officer or employee of such an organisation acting in that capacity; or
 (d) an employee who is a negotiating party;
is entitled, for the purpose of:
 (e) supporting or advancing claims made in respect of the proposed collective agreement; or
 (f) responding to industrial action by the employer against employees whose employment will be subject to the proposed collective agreement;
to organise or engage in industrial action against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.

Employer actions

 (3) Subject to subsection (5), during a bargaining period, the employer is entitled, for the purpose of:
 (a) supporting or advancing claims made by the employer in respect of the proposed collective agreement; or
 (b) responding to industrial action by any of the employees whose employment will be subject to the proposed collective agreement;
to engage in industrial action against all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the organising of, or engaging in, that industrial action is protected action.

Note 1: The existence of this entitlement does not affect any right of the employer to refuse to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed.

Note 2: The existence of this entitlement also does not affect any authorisation of the employer to stand‑down the employee under an award.

 (4) If the employer engages in industrial action against employees in accordance with subsection (3), the employer is entitled to refuse to pay any remuneration to the employees in respect of the period of the industrial action.

 (5) The employer is not entitled to engage in industrial action against employees under subsection (3) (and so the industrial action will not be protected action) unless the continuity of the employees' employment, for such purposes as are prescribed by the regulations, is not affected by the industrial action.

Subdivision B—Exclusions from protected action