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This chapter examines the nature and purposes of strike action. It suggests that strikes are a means of protecting and promoting the social and economic interests of workers—especially in the context of collective bargaining. It provides an historical outline of the relationship between strikes and the law by tracing the transition from repression of union organization, and more specifically the capacity to take strike action, through toleration to recognition, and recently back to reluctant toleration. The chapter also notes that the capacity to take strike action is almost always limited in one or more ways, including restrictions on the organizations and/or individuals that can lawfully take strike action, the forms of strike action that can legitimately be taken, the matters in relation to which strike action may be taken, and the procedural requirements for lawful strike action. A very common procedural constraint is a requirement that proposed strike action be authorized by a pre-strike ballot. Chapter 1 introduces the usual ostensible rationale for pre-strike ballots—the need to protect the democratic rights of individuals: the so-called ‘democratic imperative’. It also uses two case studies to introduce important theoretical and practical issues raised by the use of pre-strike ballots.

Workplace relations in Australia, including requirements relating to the use of industrial action in the context of enterprise bargaining, are governed by the Fair Work Act 2009 (Cth) (FW Act). Legally protected industrial action by employees and their bargaining representatives can lawfully be taken only in the context of, and is conditional upon, approval through a secret ballot of the employees to whom the proposed agreement is to apply. Conducting such a ballot is itself conditional upon first obtaining a protected industrial action ballot order from the Fair Work Commission. Whilst there is a relatively large body of published industrial relations research exploring both the frequency and the impact of strike action, there is significantly less published material on the regulation of decisions relating to industrial action by workers and their trade unions. This article provides a preliminary report on a research project which is intended to help fill this gap in the literature. Drawing on data resulting from an analysis of every protected industrial action ballot order application made to the Fair Work Commission during the reference period, the article describes the protected industrial action ballot order process in practice. This in turn facilitates understanding of the regulatory contribution made by the provisions and raises significant questions over whether the administrative burden is justified by the outcomes achieved.

In 2016, the UK Parliament passed the Trade Union Act 2016 (TU Act 2016), which introduced new quorum and approval requirements for pre-strike ballots. In Australia, mandatory pre-strike ballots, including a quorum requirement, were first introduced in 2006. This article explains the key features of the Australian pre-strike ballot system and reports on quantitative and qualitative empirical research findings on the operation of the ballots process to analyse the majority and quorum requirements, mode of ballot (postal, attendance or electronic) and choice of ballot agent. Quorum is the biggest obstacle to Australian unions authorising strike action under the pre-strike ballot rules, and postal ballots fail to reach quorum at significantly higher rates than do attendance ballots. By introducing quorums and retaining the requirement that all pre-strike ballots must be conducted by post, the TU Act 2016 endorsed the two factors under the Australian regime most likely to impede the authorisation of strike action in a pre-strike ballot.