The Case

Mornington Peninsula Shire Council (MPSC) and the Australian Municipal, Administrative, Clerical and Services Union (the Union) commenced bargaining for a number of enterprise agreements.

The Union lodged with the Fair Work Commission (FWC) three protected action ballot applications for MPSC employees to vote on. These listed the following forms of protected industrial actions for employees to take:

• not comply with the MPSC’s prohibition on employees distributing information or providing opinions to third parties including the media and residents;
• include a statement about the industrial action in all emails they sent out;
• perform their work while wearing campaign material or campaign badges;
• stop work to attach campaign material or badges to clothes worn at work;
• impose a ban on the performance of work in clothes that did not have campaign material or campaign badges attached;
• wear casual clothes;
• impose a ban on wearing uniforms; and
• impose a ban on wearing name badges.

The MPSC argued that the forms of industrial action listed on the protected action ballot did not constitute industrial action as defined in the Fair Work Act 2009 (Cth) (the FW Act).

The Verdict

At first instance, Commissioner Bisset held that the forms of action – except the first item – did constitute industrial action under the FW Act.

The MPSC and Union appealed to the Full Bench of the FWC. The Full Bench held that industrial action occurs where there is an interference with the performance of work, such as a restriction, limitation or delay. Therefore, wearing of campaign material or badges while still performing work was not industrial action. However, the stopping of work to attach badges and campaign material to an employee’s clothing would cause a delay in the performance of work and hence constituted industrial action.

The Full Bench agreed with Commissioner Bisset’s decision on the first item, holding it did not constitute industrial action, as it did not require employees to perform a task differently. It required employees to perform work they would not normally undertake.

Lesson for You

It is important to work out what constitutes industrial action under the FW Act. Industrial action that forms part of a protected action ballot order is protected industrial action. If employees take industrial action that is not protected, an order can be sought from the FWC to cease it. Penalties can also be imposed for taking unprotected industrial action.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.