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 ('ANF').

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 action.

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 of work.'

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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