Are there general protections for engaging in industrial activities?

Part 3-1, Division 4 of the Fair Work Act 2009 (Cth) (FW Act) provides protections in relation to a person’s freedom of association and participation and non-participation in industrial activities.

Authored by Nick Le Mare, Partner and Melody Martin, Associate, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team.

An introduction to general protections for industrial activities

Part 3-1, Division 4 of the Fair Work Act 2009 (Cth) (FW Act) provides protections in relation to a person’s freedom of association and participation and non-participation in industrial activities.

The relevant protections are found in s 346 of the FW Act, which provides that a person must not take adverse action against another person because that other person:

• is or is not, or was or was not, an officer or member of an industrial association;
• engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of s 347(a) or (b); or
• does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of s 347(c)–(g).

In order properly to understand these protections it is important to appreciate:

• what is meant by “industrial association”;
• what it means to be a member of such an association; and
• what is covered by the term “industrial activity”.

How is “industrial association” defined?

“Industrial association” is defined in s 12 of the FW Act to include:

• an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law;