The irony of industrial action

In a curious decision, the Full Bench of Fair Work Australia in the Mornington Peninsula Shire Council Case (July 22, 2011) upheld the approval of a protected action ballot application made by the Australian Nursing Federation, which authorised the communication by employees to the media and clients of their industrial campaign and the wearing of campaign clothing. It was held that such industrial action was capable of being protected under the Fair Work Act.

The majority decision of Senior Deputy President Watson and Commissioner Gooley accepted a broad definition of what “industrial action” means, that is, the failure to carry out a lawful and reasonable direction. The majority decision accepted that the industrial action sought to be approved by the ANF amounted to a ban, limitation or restriction on the performance of work. That is because, in performing the work, the employees would only do so by communicating their industrial campaign and wearing the campaign clothing.

The minority decision (which is likely to be the correct position should the matter be appealed) was given by Senior Deputy President Kaufman. His Honour felt that such conduct does not constitute industrial action and noted at paragraph 55:

“Both at common law and under the Act the notion of industrial action connotes conduct that results in some form of interference with work or has an adverse impact upon productivity. However, communication of the purpose of introducing or furthering the imposition of bans, limitations, etc may constitute industrial action. It is the nature of the communication that must govern the question of whether particular communication constitutes industrial action”.

His Honour held that communicating the industrial campaign did not affect the manner in which the work was usually performed (even during working hours). There is nothing in the conduct to suggest that it would result in a restriction or limitation on, or a delay in the performance of, work. However, had there been some short stoppage of work to distribute the information that may in fact be industrial action. For similar reasons, His Honour dismissed the wearing of campaign clothing as industrial action. His Honour noted at paragraph 64:

“It must be remembered that the people concerned are maternal and health care nurses who wear casual clothing while performing their duties.”

The importance of this case is significant. By the union seeking to broaden the definition of “industrial action” to mere communication, members who distribute information about an industrial campaign or wear clothing with campaign logos expose themselves and their union to:

1. Injunctive applications to Fair Work Australia or the Federal Court.

2. Penalties.

3. The risk of civil litigation being commenced against them (arising from the fact that it does not form part of a protected ballot application and therefore the immunity against civil action is not available).

On every major building site across Australia, you will see building and construction workers wearing logos about generalised union campaigns. Flags are flown from cranes, media statements are issued in respect of building companies and the industrial space is filled with communication of union complaints and industrial campaign slogans and logos.

None of these actions by the union and its members form part of a protected action ballot, but is part of the day-to-day discourse that exists between unions and employers. With the greatest respect to the majority in Fair Work Australia, they have opened a can of worms.

Employers are now free to require the removal of flags, the removal of logos and slogans from clothing and to crack down on the types of industrial communication which have been part of Australia’s industrial life since the shearer’s strike before the turn of the 20th century. Can this really be right?

Should the matter proceed to appeal, it is likely that the majority decision will be reversed. If not, we are likely to see significant changes in our industrial landscape as employers move to remove all signs of generalised union campaigning, communication and the distribution of information regarding disputed employer behaviour. Surely, this is not what the Full Bench countenanced when they approved this protected action ballot?

Andrew Douglas is a Principal for Macpherson + Kelley Lawyers. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He appears in courts, tribunals and Commissions throughout Australia.