3.2.2.40 Situations involving industrial action

Impact on qualification for JSP

A person is NOT qualified for JSP during industrial action if they:

• become unemployed due to taking part, or having taken part in industrial action or in a series of industrial actions, or
• become unemployed due to other people taking part or having taken part in industrial action, and
  • the people or some of the people involved in the industrial action were trade union members, and
  • the person was a member of the trade union during the period of the industrial action.

If there is a dispute between the claimant and the employer about whether or not the unemployment was caused by an industrial dispute, the delegate may need to consider contacting the union involved to clarify the situation.

Connection to industrial action

If a person is a member of a union involved in industrial action, but their connection to that action is distant, the connection between their unemployment and the industrial action may be broken. If it is decided that the connection is broken, then the person can be treated as unemployed (1.1.U.30). Determining whether the person's connection to the industrial action is broken or not depends on the circumstances of each case.

Industrial action exclusion after industrial action ends

If a person applies for JSP or YA as a job seeker as a result of unemployment arising from industrial action and that industrial action has ceased, they may be disqualified from JSP or YA (job seeker) for 6 weeks after the industrial action ends. This disqualification applies only if the industrial action was in breach of an order, direction, or injunction issued by a state industrial authority, the Australian Industrial Relations Commission (AIRC) or the Federal Court. This exclusion period commences from the date the industrial action ceases. If the person found other employment and then became unemployed again within this 6 week period, any remaining part of the exclusion period would still apply. Claimants for PP are not excluded after the industrial action ends.

Cessation of industrial action

If a person became unemployed as a result of industrial action, and the industrial action was not in breach of an order, they may qualify for JSP once that industrial action ceases. If the employees cannot resume work because they are locked-out by their employer, and the employees are willing to perform work for the employer in the normal manner, then the employees can be considered to be constructively suspended from work. In circumstances such as this, subject to eligibility criteria, JSP is payable.

Industrial action can be considered to have ended when normal work has resumed and no bans or limitations on work are imposed. If after resumption of work some workers remain stood down because they cannot be gainfully employed, JSP, YA (job seeker) or PP may be payable. JSP or YA (job seeker) would only be payable if an industrial action exclusion did not apply, or had expired.

Cessation of trade union membership - resignation

A member of a trade union may cease their membership by resignation. The date of effect of the resignation will depend on the individual circumstances of the member. If the member ceases to be eligible to become a member of the trade union, the resignation will come into effect on the later date of either:

• the date their written notice is received by the trade union, or
• a day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible. 

In any other case, the resignation will come into effect on the later date of either:

• at the end of two weeks after the notice is received, or shorter if specified in the rules for the trade union, or
• on the day specified in the notice.

Cessation of trade union – Other

A person’s membership with a trade union may be ceased through other ways, such as by a Federal Court order, cessation of employment, or non-financial members removed from the register. These are set out in Part 3 of Chapter 6 of the Fair Work (Registered Organisations) Act 2009.

Impact on partner

While a recipient may not qualify for JSP, YA (job seeker) or PP while engaged in industrial action, their partner may qualify for an income support payment in their own right. If the payment is granted, the maximum rate payable is the partnered rate. If it is paid in the context of industrial action, the payment must be kept under close review during the course of the dispute. Any strike pay received by the worker is treated as income and may affect the partner's rate.