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[2017] FWC 4184
Fair Work Commission
2017-08-14
Original judgment source is linked above.
[2017] FWC 4184 [Note: An appeal pursuant to s.604 (C2017/4742) was lodged against this decision and the order arising from this decision.]
s.437 - Protected action
Australian Municipal, Administrative, Clerical and Services Union
Proposed protected action ballot of employees of Mornington Peninsula Shire - application opposed on grounds related to form and nature of questions - whether action would be industrial action if taken.
[1] The Australian Municipal, Administrative, Clerical and Services Union (ASU) has made three applications (B2017/646, B2017/647, B2017/648) pursuant to s.437 of the Fair Work Act 2009 (the FW Act) for protected action ballot orders in relation to certain employees of the Mornington Peninsular Shire (MPS). The applications were made on 28 July 2017.
[2] MPS has indicated that it objects to parts of the question to be asked in the proposed ballots on the grounds that it says that any resulting action could not be industrial action as defined by the FW Act. The same questions appear in each of the ballots and the resolution of the objection will be the same for each of the ballots.
[3] MPS does not otherwise object to the grant of the applications.
[4] Amended draft orders were provided to the Fair Work Commission (Commission) at the hearing of the applications.
[5] Section 443(1) of the FW Act states:
443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
[7] Those parts of the question to be asked in each of the ballots to which objection is taken is as follows[1]:
In support of reaching an Enterprise Agreement with Mornington Shire Council of you endorse the taking of industrial action, which may be taken separately, concurrently or consecutively, described in Schedule A to this Ballot Paper?
[8] On the agreement of the ASU to remove the words "the aforementioned" in part 6, the objection to that part of the question was withdrawn.
[9] No objection is taken to any other part of the questions in each of the applications.
[10] The ASU submits that there are a number of important principles that can be drawn from the relevant authorities in relation to the determination by the Commission of an application for protected action ballot orders. These are:
(a) That the Commission is not required to definitively determine if the industrial action that may be taken pursuant to a successful ballot will be protected industrial action;[2]
(b) It is not necessary that the proposed action be taken by all of the employees;[3]
(c) Communications can amount to industrial action;[4]
(d) Action that might not be industrial action may otherwise be protected if taken concurrent with protected industrial action;
(e) An employee required to wear a uniform, if not wearing the uniform in accordance with that direction, is not performing work in the manner directed and is therefore engaged in industrial action;[5]
(a) "work" referred to in the definition of industrial action[6] is the work performed by the employee taking the relevant action and not to work more broadly. To determine if action is or is likely to be industrial action it is necessary to determine the work normally performed by an employee to determine if the action is likely to be industrial action;[7]
(b) The wearing of campaign t-shirts or other clothing or badges is not industrial action;[8]
(c) That where a stoppage of work is to occur for a particular purpose, that purpose must also be industrial action as defined.
[12] Further, MPS submits that the decisions of the Commission in Australian Nursing and Midwifery Federation v Nillumbik Shire Council[9] (Nillumbik) and in Australian Municipal, Administrative, Clerical and Services Union v Launch Housing[10] (Launch Housing), to the extent that they support a contrary view, are wrongly decided and should not be followed.
[13] There are some general observations to be made prior to a consideration of the specific parts to the question to which objection is taken.
[14] I agree with the observations of Commissioner Hampton in Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology[11] as to the role of the Commission in determining a protected action ballot order application and his finding that "it is necessary to find that the questions concern action that at least has the potential to be industrial action if taken by all or some of the groups of employees to be balloted".[12]
[15] A forensic examination of whether each and every employee to be balloted, if they did participate in the industrial action however notified (and this cannot be known at the stage of determining an application), would be taking protected industrial action is not required. Given the breadth of employees to be balloted in this case, all that is necessary is for one employee to be able to take industrial action pursuant to that part of the question for that proposal to be legitimately included on the ballot. This does not mean that the action taken is not required to fall within the ambit of the definition of industrial action.
[16] I do not consider the decision in United Firefighters' Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission and Another[13] (Laing) supports a proposition that communication, per se, is industrial action. As French J said, the definition of industrial action:
...extends to the communication of a limitation or restriction. Communication picked up under pars (b) and (c) [of the definition of industrial action] must no doubt purport to be hortatory, if not authoritative and binding, upon the person or persons to whom it is directed."[14]
[17] However, Ambulance Victoria v United Voice[15] does contemplate that the stoppage of work in order to participate in some form of communication may well be industrial action. The industrial action in such a case however is not the communication but the stoppage during which the communication occurs.
[18] In Nillumbik, after considering the decision in Ambulance Victoria and United Firefighters' Union of Australia v Easy[16] (Easy) I said:
[30] The circumstances in the matter before me can be distinguished from those considered in Ambulance Victoria and UFU both set out above. Each of those cases involved action that, on the findings, bore no relationship to industrial action as defined by the Act. Neither had, as a concomitant part of the action, a stoppage of work.
[31] I am also satisfied that the circumstances of this case can be distinguished from that in All Hallow's where it was found that the question incorporated two actions - a delay in responding to emails and an 'out of office' message on emails either of which could survive without the other. The second action (the out of office message), not being industrial action, could therefore not be included on the ballot. There was no specific action taken in conjunction with the 'out of office' reply that could bring that action within the orbit of industrial action.
[19] Nothing has been put to me as to why I should depart from such reasoning in circumstances where a stoppage of work is proposed and there is some indication as to what is to occur during that stoppage.
[20] Part 1 of the question to be put to the voters goes to employees undertaking communications not normally a part of their duties.
[21] The ASU submits that there is appositive obligation placed on employees to perform work in conformity with the policies of MPS. One such obligation is to limit who may comment on MPS matters publicly. To work otherwise, it submits, is a ban or limitation on how work is performed.
[22] The MPS submits that the proposed action does not fall within the definition of industrial action in s.19(1)(a) of the FW Act. It submits that, in taking the action it would be "beyond and outside the range of the relevant employees' normal duties rather than placing a restriction on the performance of those duties" or performing work "in a manner different from that in which it is customarily performed..."
[23] In the decision in Launch Housing I said, in respect to a question to be put to ballot in terms not dissimilar to part 1:
[14] I am therefore satisfied that the work of employees to be balloted does not include commenting, making comment or distributing information to the public. Any action with respect to doing such things cannot, therefore, be considered industrial action within the meaning of s.19 of the Act. It shall be removed from that part of the question.
[24] It is clearly the case that non-compliance with a work requirement may be a ban or limitation on how work is usually performed (for example a ban on the issuing of parking tickets or collecting waste) but this proposal is of a different character. The action arising from part 1 of the question would require employees to do work that they would not normally be engaged in doing and are not required to do. The proposal does not go to those employees who are engaged to make comment or distribute information such that they should not do it or perform the task differently.
[25] The communication proposed by this action is not hortatory in any sense such that the decision in Laing might apply. That some communications may be industrial action does not mean that all communications, for whatever purpose, will fall within the definition. Further, I am not satisfied that the action falls within the ambit of industrial action as contemplated in Ambulance Victoria v United Voice.[17]
[26] For these reasons I am not satisfied that the action proposed by part 1 could give rise to industrial action within the meaning of the FW Act.
[27] Part 1 of the question will therefore be deleted.
[28] The action arising from parts 2 and 5 of the question involve the stoppage of work for a period of time within which certain things must be done.
[29] The ASU submits that it is industrial action as the specific action of adding words to an email is predicated on the stopping of work.
[30] MPS submits that it is necessary to sever the thing that will be done during the period of industrial action from the industrial action itself. Further, it submits that the ASU has "infected" the question with actions which would not, by themselves, be industrial action as defined in the FW Act.
[31] MPS says that the attempt by the ASU to cloak actions unrelated to the performance of work was contemplated in All Hallow's where the Full Bench determined that "both actions must constitute industrial action in order to be capable of being supported" and in any event is still not industrial action because the action does not result in the delay in the performance of work.
[32] I do not agree with the submissions of MPS. In All Hallow's the Full Bench found that there were two actions occurring. The first was a delay in the performance of work which was found to be industrial action within the definition in the FW Act. The second, the inclusion of an "out of office" message which was found not to be industrial action. It was to these two distinct parts of the question that the Full Bench directed its observation. In this case there is only one action - the stoppage of work during which certain things will be done.
[33] In the minority decision in Australian Nursing Federation v Mornington Peninsular Shire Council[18] (Mornington) Senior Deputy President Kaufman observed that "Had the proposed conduct been along the lines of say, a stoppage of work for 5 minutes per shift or per hour in order that information might be distributed, I would have come to a different conclusion" that the proposed action was not industrial action. Further, in Ambulance Victoria v Untied Voice Tracey J, in finding that communications in that case was not industrial action said "Like Kaufman SDP, I accept that the position might be different were the proposed conduct to include express provision for a stoppage of work, even for a short period..."[19]
[34] To this extent MPS misunderstands the basis on which the decision was reached in Nillumbik and in Launch Housing.
[35] As I observed in Nillimbik:
[32] In this case the actions are put as co-dependent - that is, unless the second action is taken any stoppage for five minutes will not be industrial action authorised by the ballot and without the stoppage the material cannot be distributed...
[34] Whilst it is true that the communication proposed in the question by itself will not be industrial action that is not the industrial action proposed. As I have said above the two actions are co-dependent. There is only one action that will be taken and that is a stoppage of work during which material will be provided/explained to clients.
[36] To the extent that the ASU chose to be so restrictive in the proposed action they wish to put to members, this is their choice. It will be to them to manage any action that may be taken arising from the ballot such that it remains protected by the ballot itself.
[37] I am satisfied that parts 2 and 5 of the question can remain.
[38] Parts 4, 8, 9 and 10 of the question go to the wearing of campaign clothing and/or badges or a refusal to wear certain clothing as required by MPS.
[39] The ASU submits that, if it is a requirement that an employee wear certain clothing at work, then any departure from the wearing of that clothing is "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" such that the action comes within the definition of industrial action.
[40] MPS submits that it does not fall within the definition of industrial action for the reasons outlined in part 1 of the question above. That is, it says that what is proposed is the reverse of a restriction on the performance of work as it refers to non-compliance with restriction imposed by MPS.
[41] In Mornington, the majority (Senior Deputy President Watson and Commissioner Gooley) found that:
[30] Section 19(1)(b) of the Act is therefore directed to both the work the employees do and the circumstances in which they offer to do it.
[31] If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work.
[32] Accordingly, we find that the wearing of campaign clothing whilst at work could constitute 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 (s.19(1)(b)).
[42] In Easy Justice Ross distinguished Mornington from the matter he was considering in that, in Mornington unlike the matter before him, the "wearing of union campaign clothing was contrary to the employer's clothing policy."[20] He further found that where the employer has a clothing policy:
If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work. But that is not this case.
[43] To the extent that there are employees of MPS who are required to wear certain clothing I am satisfied that the wearing of campaign clothing or badges or the wearing of clothing other than that required by MPS may constitute industrial action. To not wear such clothing or to wear it in some alternative form is a limitation on the performance or on the acceptance of or offering for work by an employee.
[44] I am therefore satisfied that parts 4, 8, 9 and 10 of the question can remain.
[45] I am satisfied that three distinct applications for protected industrial action have been made pursuant to s.437 of the Act. I am also satisfied that the ASU has, and is, genuinely trying to reach agreement with respect to each of these agreements.
[46] I am satisfied therefore that the requirements of s.443(1) of the FW Act have been met and that, accordingly, an Order must be made with respect to each application.
[47] Protected action ballot orders will be made today with respect to:
(a) Employees of MPS who will be covered by the Aged and Disability enterprise agreement and who are members of the ASU;[21]
(b) Employees of MPS who will be covered by the General Staff enterprise agreement and who are members of the ASU.[22]
(c) Employees of MPS who will be covered by the Sport and Leisure enterprise agreement and who are members of the ASU;[23]
Each ballot will include the question as proposed by the ASU and set out in each application amended in accordance with this decision.
E. White, of counsel, for the Australian Municipal, Administrative, Clerical and Services Union.
[1] Whilst those parts of the question to which objection is taken is the same there is some variation is other parts of the question across each of the proposed ballots.
[2] Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology [2014] FWC 8809, [35]
[4] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission and Another (1998) 86 IR 142 cited in Clinical Laboratories, [53].
[5] United Firefighters Union of Australia v Easy [2013] FCA 763; Australian Nursing and Midwifery Federation v Nillumbik Shire Council [2016] FWC 3664, [22]-[23].
[7] Ambulance Victoria v United Voice [2014] FCA 1119.
[8] United Firefighters' Union of Australia v Easy [2013] FCA 763.
[18] [2011] FWAFB 4809, [62].
[19] [2014] FCA 1119, [24].
[20] [2013] FCA 763, [152].
Printed by authority of the Commonwealth Government Printer
Australian Municipal, Administrative, Clerical and Services Union
Mornington Peninsula Shire [2017] FWC 4184
(1998) 86 IR 142