29 Sep 2011

Expanded meaning of "industrial action" under the Fair Work Act causes PR headache for employers

by Dr Graham Smith, Lauren Townsend

"Industrial action" under the Fair Work Act can include distributing campaign information and wearing campaign uniforms.

Employees could have greater scope for generating bad PR for their employers as a bargaining chip in negotiations, following the decision by Fair Work Australia in Re: Australian Nursing Federation [2011] FWAFB 4809.

Amongst other things, this order and its expanded view of "industrial action" under the Fair Work Act allows employees to vote to authorise protected industrial action in the form of distributing information to clients and the media about a union campaign, and wearing campaign clothing.

What were the facts?

In July 2011, the Australian Nursing Federation (Victoria Branch) (ANF) sought a protected action ballot order related to bargaining for a new enterprise agreement to cover Registered Nurses employed by the Mornington Peninsula Shire Council. The ANF's proposed ballot question 5 was:

[Do you] Authorise the industrial action by Registered Nurses in the form of distributing information to clients, and the media about the reason for industrial action, and the wearing of campaign clothing?

The Council objected to this because it said these actions were not "industrial action" within the meaning of section 19 of the Fair Work Act:

  • 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;
  • a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
  • a failure or refusal by employees to attend for work or a failure or refusal to perform ant work at all by employees who attend for work; or
  • the lockout of employees from their employment by the employer of the employees.

VP Lawler granted the ANF a protected action ballot order in the terms sought. The Council then appealed.

Were the acts of distributing campaign information to clients and the media, and wearing campaign clothing instead of standard uniform, industrial action?

In dismissing the Council's appeal, the Full Bench held that the actions specified in question 5 of the ANF's protected action ballot could be capable, in all the circumstances, of constituting "industrial action" within the meaning of section 19 of the FW Act (so long as the action was not authorised or agreed to by the employer). Indeed, in this case it found that those actions would constitute industrial action.

Distributing campaign information: the Full Bench held that if, for example, employees stopped working to communicate the reasons for their industrial action to other people, then this action would clearly fall within the first two categories of industrial action.

Wearing campaign clothing: the Full Bench held that this action could fall within the second category of industrial action because:

  • the term "performance of work" is not restricted to how tasks associated with a particular job are performed. Rather, it involves (for example), when, where and how work is performed and the conditions under which it is performed; and
  • this category is directed to both the work the employees do and the circumstances in which they offer to do it.

Key lessons

Employees are increasingly prepared to take more novel forms of industrial action against employers during periods of enterprise bargaining, which can include involving the public directly in their campaigns without necessarily disrupting the services and outputs of employers. This has the potential to cause greater PR headaches for employers.

For example, this Full Bench decision follows on from a FWA decision earlier this year to grant a protected action ballot order to the Australian and International Pilots Association (AIPA), so that AIPA was allowed to put similar questions to Qantas long haul pilots in a protected action ballot. The result was that the majority of pilots who were AIPA members voted to implement bans on compliance with Qantas' uniform policy (by wearing an AIPA uniform instead of the required Qantas uniform), and to implement bans on compliance with Qantas' passenger announcement statements (by making union in-flight announcements to passengers). Neither of these forms of industrial action necessarily disrupted Qantas long haul services, but it did put some pressure on Qantas' public image.

This FWA Full Bench decision makes it clear that such action is capable of being "protected industrial action" for the purposes of the Fair Work Act, and opens the way for industrial action which may have more potent PR implications for employers on the other side of the bargaining table.

On the other hand, the decision leaves a grey area in relation to when conduct of the kind contemplated by question 5 actually amounts to industrial action. If employees wear a union badge and the employer directs them not to wear it, will that wearing of the badge be industrial action?


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.