Bearing the Economic Loss of Industrial Action: The Payment of Striking Employees under the Fair Work Act 2009 (Cth)

This article aims to elucidate the legal principles governing the right of striking employees in Australia to payment during periods of industrial action. It explains briefly the common law antecedents to the strike pay provisions of the Fair Work Act 2009 (Cth) and discusses in detail a number of decisions that interpret those provisions, including the recent High Court decision in CFMEU v Mammoet, which held that the prohibition on payments to employees who take protected industrial action is confined to the withholding of wages and does not permit employers to withhold other benefits, such as employer-sponsored accommodation. The article argues that, whilst the High Court decision provides a welcome clarification, there is a need for further judicial clarification of the partial work ban provisions in particular. The article discusses the assertions that the Fair Work Act provisions are overly prescriptive and the reasons for this, and suggests that they are unlikely to be relaxed in the current political climate