Recent months have seen a number of prominent protests in Australian cities with visible union involvement. For example, since June, we have seen the CFMEU protesting outside the Royal Commission into Trade Union Governance and Corruption, steelworkers protesting at the Port of Melbourne, and large union-organised protests against the federal budget in state capitals.

Often these protests are union-organised or supported, with the result that employees are encouraged to walk off the job and participate in the protest.

This is likely to be an ongoing issue while these protests continue to be organised. Union protest activity shows no sign of stopping, with peak union bodies and their affiliates opposing a range of state and federal government policies and legislative proposals.

Employers have a range of options to deal with employees walking off the job. One option is to seek a “Stop Order” from the Fair Work Commission (FWC).

Is a political protest “industrial action”?

At least on one view, a walk out might not be “industrial action” if it stands outside the area of industrial disputation and bargaining. Unions will often argue that a public political rally doesn’t have an “industrial” character because it isn’t about the relationship between the employer and its employees – there is no demand made by employees or the union that the employer can satisfy. There are some cases where the courts have held that behaviour is not “industrial action” if there is no “industrial” motivation. A union may rely on this to say that an employee walking off the job to express a political opinion cannot be “industrial action”, even when organised by a union.

Helpfully, the FWC’s predecessor tribunal and the Federal Court have both held that leaving work to attend a political protest can still be “industrial action”. There is no broad exception which applies to a rally because it is occurring in a “political” context.

The FWC will always examine what has occurred in each case to see whether it meets the definition of “industrial action”. However, the employer’s position will be stronger if it can show that the union has sought to negotiate any industrial issues in the same context – for example, if there has been a request that the employer release staff to attend the protest, provide transportation, and/or pay the absent employees’ wages for all or part of the lost time. This will make it easier to show that the action being taken by employees has taken place in the context of a demand made of the employer.