Communication of information and wearing campaign clothing
constitutes industrial action
Mornington Peninsula Shire Council
Recently, Fair Work Australia ('FWA')
heard an appeal from Mornington Peninsula Shire Council
('MC'). The appeal concerned the grant of
a protected action ballot to the Australian Nursing Federation
The Council took issue with the grant on the basis that the
action it was protecting should not have been classified as
industrial action at all.
The proposed action was that union members would be permitted to
wear 'campaign clothing' and communicate the details of
their dispute with their employer to clients and the media.
The full bench of FWA, came to a split decision, when two of the
three members agreed that the proposed action was enough to
constitute industrial action under the Fair Work Act 2009
('Fair Work Act').
Senior Deputy President Watson and Commissioner Gooley explained
that 'if employees are ceasing or interrupting their work in
order to communicate the reasons for industrial action to clients
or the media - the action is clearly involving the performance of
work by employees in a manner different from that in which it is
customarily performed. The result of which is a restriction or
limitation or delay in the performance of (their paid) work.'
They also stated that 'the wearing of campaign clothing is
capable of constituting a ban, limitation or restriction on the
performance of work or the acceptance of or offering for work by an
employee' and that such actions are forms of industrial
Senior Deputy President Kaufman disagreed with the decision of
the majority. He stated that in his opinion the 'dissemination
of information is clearly not a ban, limitation or restriction on
the performance of work and does not [fall within the provisions of
the Act].' He also said 'I fail to see how the wearing of
campaign clothing falls within...the scope of the definition of
[industrial action]. Wearing campaign clothing whilst performing
work has nothing to do with the manner in which the work is
performed. [It] does not ban...limit...or restrict the performance
of the work, [or] ban, limit or restrict the acceptance or offering
In his view, the planned action of the employees was 'a form
of employee disobedience somewhat akin to civil disobedience [and
not industrial action for the purposes of the Fair Work
Act].' He considered that the appeal should be allowed and
the order of a protected action ballot, quashed.
Given that FWA's decision was split, it appears that the
jury is not out on what types of conduct and behaviour could be
considered to be industrial action.
Significance of the decision
It is clear from this case that Unions are coming up with more
interesting and creative ways to engage in lawful industrial
action, which will have maximum impact on employers but which will
cost their members little or nothing in lost wages. With this
creativity comes a series of issues that both employers and
employees need to be aware of, for example:
Will an employer have the right to treat an employee who wears
a 'Union Badge or Specific Insignia' as engaging in
unprotected industrial action and dock that employee's pay for
four hours or longer if the badge is not removed?
Will a Union and it's member be granted a protected action
ballot order to protect employee's who wear 'union member
badges' to work? Will the wearing of the badge by an employee
who attends for work and performs their work constitute a
'partial work ban?' and therefore entitle the employer to
give his / her employees notice that their pay will be reduced by a
proportion or of non-payment for the period of the action?
It is likely that there will need to be further litigation to
settle the law in this area.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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