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Circular 2016/6W: Rights and obligations during bargaining and participation in protected industrial action

1. The purpose of this advice is to remind Australian Public Service agencies and their employees about their rights and obligations during bargaining, with particular focus on participation in protected industrial action.  

2. The right to join, or not join a union and the right to participate, or not participate, in lawful protected industrial action are fundamental rights enshrined in legislation. It is important that these rights be respected at all times.

3. It is unlawful for certain persons, including employers and unions, to take 'adverse action' against an employee because they are, or are not, a union member. It is also unlawful for adverse action to be taken against any employee who lawfully chooses to participate, or not participate, in protected industrial action.

Participating in protected industrial action

4. Employees are only eligible to participate in protected industrial action where:

  1. they are represented in bargaining by a bargaining representative who applied for and was granted permission to conduct a protected action ballot order (e.g. a union); and
  2. they will be covered by the proposed enterprise agreement that the industrial action is related to; and
  3. all other legal requirements for the taking of industrial action have been met, including that employees are genuinely trying to reach agreement with the employer.

If these requirements are not met, participation in industrial action will be unlawful.

5. Where an employee is not eligible to participate in protected industrial action, or they are eligible but have chosen not to participate in that action, he or she cannot refuse to perform work that they are lawfully and reasonably directed to perform. A refusal to perform such work could result in a breach of the APS Code of Conduct and as a result, the employee could be subject to disciplinary action under the Public Service Act 1999.

6. Agencies are encouraged to remind employees about their obligations in these matters.

7. For further information, please contact your APSC Relationship Manager or workplacerelations [at] apsc.gov.au

Last reviewed: 
29 March 2018