With Australian Public Service staff less than enamoured by below-inflation pay rise offers, and the government refusing to budge in the name of an alleged fiscal emergency, a protracted industrial battle could be upon us. As ever, the legal niceties of the situation are many and complex.

To start with, industrial action is defined broadly by the legislation, such that it covers everything from a multi-day strike to minor attempts at disruption. In the latter category, the concept of "work to rule" is a somewhat irregular form of action where aggrieved workers adopt a very literal interpretation of their employment conditions with an intention to interrupt normal business. For example, in a landmark British case, railway workers strictly observed a rule requiring drivers to "satisfy themselves that the engine is in proper order", leading to significant delays across the network.

While this approach may seem less egregious than outright strikes – staff are still ostensibly undertaking their employment – it is nevertheless caught by section 19 of the Fair Work Act, which defines "industrial action" to include: "the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work".

Accordingly, regardless of its exact nature, almost all disruptive activities related to workplace bargaining will be classified as industrial action by the act, and hence the legislative scheme must be observed in any forthcoming action. As High Court Chief Justice Robert French wrote of analogous legislation in Laing (1998), "the conduct which may be stopped or prevented [extends] to strikes, stop work meetings, work to rule or go-slow practices. It is not confined to stoppages."

There are two forms of industrial action under the act: unprotected and protected. Although the former is not safeguarded by the act, and thus traditional common law remedies (breach of contract, tortious liability, etc) remain available to an employer, there is also no statutory prohibition against unprotected industrial action as long as it occurs after the nominal expiry date of an enterprise agreement.

Protected industrial action, meanwhile, is action taken by an employee or employer after an enterprise agreement expires while the parties are "genuinely trying to reach" a new deal. Notwithstanding a number of technical preconditions, the primary obstacle to such action by employees is the authorisation requirement: a protected action ballot undertaken on the approval of the Fair Work Commission. If there is majority support and at least half of the eligible staff take part in the vote, the industrial action outlined on the ballot will be protected, providing both immunity from most causes of action and protection from dismissal or other adverse treatment.

In the Department of Human Services example, staff overwhelmingly approved each of the nine options on a protected action ballot. These ranged from "an unlimited number of stoppages" in a 24-hour period to "bans or limitations upon performing work that is 'on hand' until work that is overdue or has aged past its KPI is actioned". Once the union gives the requisite notice prescribed by the commission – between three and five days – industrial action can begin.

The situation is complicated further by the "no payment" provisions of the act, which ban employers from paying wages "in relation to the total duration" of industrial action. For partial work bans, such as a go-slow action, an employee's payment is reduced by a calculated proportion. In short, the old maxim still applies: no work (or no work in the usual manner), no pay.

Thus, proposed industrial action, particularly from revenue generating agencies such as the Tax Office, may place the government in a difficult position. On the one hand, the Coalition's commitment to broad budget cuts will lose credibility if it caves in to public servants' wage demands, and compromise to any one department could have a dangerous cascading effect across the public service.

On the other hand, large-scale disruption would hurt the government and risk irritating the general public – the latter a prominent consideration for both sides of the debate. Stir in the legislative requirement to withhold wages during industrial action, and just one spark could transform an already fraught situation into a powder keg poised to explode. Watch this space.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. john.wilson@bradleyallenlove.com.au