s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Optia Limited trading as Possability

[1] This decision concerns an application by the Health Services Union - Victoria No. 2 Branch trading as the Health and Community Services Union (HACSU or Applicant) made under section 437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Optia Limited (Optia or Employer).

• [2] The employees involved are disability support workers. Their work generally involves directly supporting clients with daily living, such as attending a client's home and assisting with meals or accompanying clients to appointments.[1] There are also a number of house supervisors and operations managers who perform supervisory and managerial functions.

[3] On 23 February 2026, the Fair Work Commission was advised that the Employer objected to the PABO application. The parties attended a conciliation conference before me on 24 February 2026 where they reached agreement to address a number of Optia's concerns. Following this HACSU filed an amended application. However, the amended application did not address all of Optia's concerns. While Optia did not generally oppose the application, it contended that certain proposed ballot questions were objectionable because they did not describe action that met the definition of industrial action under s.19 of the Act. I therefore listed the matter for hearing later in the day on 24 February 2026 to consider Optia's objections.

[4] Optia objected to following questions in the application:

"In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively in the form of:...

1. A ban on compliance with the employer's policies and/or code of conduct to the extent that they prevent members from including an EBA campaign message in their e-mail signature?

1. A ban on compliance with the employer's policies and/or code of conduct to the extent that they prevent members from using their company email to distribute EBA or union campaign material or messages?

1. A ban on compliance with the employer's policies and/or code of conduct to the extent that they prevent members from including an EBA campaign message as a name or background in video conference meetings?

1. Delaying or restricting the performance of normal duties by including or copying management staff into all work-related emails?

1. Delaying or restricting the performance of normal duties by displaying campaign posters, slogans and/or colours in the workplace and in vehicles?

1. A ban on compliance with the employer's policies and/or code of conduct to the extent that they prevent members from publishing or distributing or communicating information relating to enterprise bargaining or HACSU campaigns, including via social media and speaking to the media, clients/residents, families/carers, visitors, members of the public and other staff members?"

• [5] Optia submits that the action described in the contested questions does not meet the definition of industrial action under section 19 of the Act. In brief summary, Optia submits that the action described in the contentious questions is action in addition to the performance of daily work, and does not result in a restriction, limitation or delay in the performance or acceptance of work as required by section 19(1)(a) or (b). In this regard Optia relies on the Full Bench decision in the Mornington Peninsula Shire Council v ASU case[2] and the decision of Tracey J in Ambulance Victoria v United Voice.[3] In particular, Optia argues that the described actions are outside of the employees' usual work and a ban on complying with a company policy will only be industrial action if it involves some sort of stoppage, limitation or restriction on the performance of work. Optia further submits a delay cannot be industrial action unless the delay is not part of work customarily performed.

[6] HACSU argues that if employees were to engage in the action described in the contested questions they would be performing work in a manner different from that in which it is customarily performed. In this regard they point to the evidence of Ms Bridey Booker, Regional Manager, who confirmed that it would not be customary or usual practice for employees to, for example, include an Enterprise Bargaining Agreement (EBA) campaign message in e-mail signatures; use their company email to distribute EBA or union campaign material; or include EBA campaign messages as a background in video conference meetings.

[7] Further, HACSU argues that performing the described actions would lead to a delay in the performance of work. Here HACSU points to evidence of Ms Booker that copying all management into emails would delay work, that displaying campaign material may lead to a short delay, and that if employees spoke to the media during work hours this would delay the performance of normal duties. HACSU submits that the contested questions are distinguishable from the questions considered in Ambulance Victoria because the questions include a ban on following policies, not just a requirement to perform an action.

[8] Section 443 of the Act provides for when the Commission must make a protected action ballot order. Section 443(3)(d) provides "A protected action ballot order must specify.... The question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action."

[9] It is uncontroversial that in order to be a protected employee claim action, the action concerned must, amongst other requirements, be authorised by a PABO and fall within the scope of the definition of industrial action in section 19 of the Act.

[10] Section 19 of the Act defines industrial action as follows:

(1) Industrial action means action of any of the following kinds:

(a) 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;

(b) 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;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

[11] In this matter HACSU argues the described action in the contested questions meets the definition of industrial action at either section 19(1)(a) or (b).

[12] The Full Bench in Mornington Peninsula Shire Council v ASU articulated the task before me as follows:

"The question whether action described in an application for a protected action ballot order is capable of being properly described as industrial action within the meaning of s.19 of the FW Act is answered primarily by construing the words used in any proposed question, ascertaining the nature of the action described by the proposed question and determining whether that action (having regard to the work performed by employees who are to be balloted) is capable of falling within the exhaustive statutory definition of industrial action.[4]"

[13] Having considered the relevant authorities raised by the parties, and more generally, I set out the principles I have taken into account in my determination:

[14] Firstly, I have adopted the construction of section 19(1)(a) articulated by Ross J in Easy:

"The first element of s 19(1)(a) is that the performance of work by the employee must be in a manner different from that in which it is customarily performed. The second element, which is an alternative to the first, is that there must be the adoption of a practice in relation to the work. In both instances, the action must result in a restriction or limitation on, or a delay in, the performance of the work."[5]

• It is clear that performance of work in a manner that is different from that in which it is customarily performed is only industrial action if it results in the restriction or limitation on, or delay in, the performance of the work.

• • Non-compliance with a work requirement or policy can be industrial action, but only when the non-compliance with a work requirement or policy results in work being performed differently and a consequential restriction, limitation or delay in the performance of normal work occurs.[6]

[16] In considering whether a contested question describes action that is industrial action for the purpose of section 19(1):

• • The Work performed is work by an employee to be balloted.[7]
• • It is enough that action described may be potential industrial action for some of the employees to be balloted (i.e. there is no requirement that the action described needs to be industrial action for all employees balloted).[8]
• • The action for which approval is sought through the PABO should expressly "describe the nature of the industrial action for which approval is sought in the question."[9]
• [17] Noting the above, the specificity required in a description of industrial action in a PABO is not the same as what may be required in a notice to be given by bargaining representatives pursuant to s 414 of the FW Act. [10] At the stage of a s 437 application, without the benefit of further contextual detail on the specifics of how industrial action is to take place, the Commission's role is to consider whether described action is "capable of being industrial action".[11]

[18] I now turn to consider the contested questions.

[19] Questions 15, 16, 17 and 21 relate to bans on complying with Optia's policy and/or code of conduct in relation:

• Preventing union members including an EBA campaign message in their e-mail signature (question 15);
• Preventing union members using their company email to distribute EBA or union campaign material or messages (question 16);
• Preventing union members displaying EBA campaign messages as a name or background in video conference meetings (question 17); and
• Preventing union members from communicating information regarding the EBA campaign via social media, and to media and other parties (question 18).

[20] A ban on a company requirement may be industrial action, but only when it meets the requirements of section 19(1). More particularly, in relation to 19(1)(a) and (b), a ban on complying with a policy or company requirement will only be industrial action if:

• It means work is performed differently and this results in a restriction, limitation or delay on the performance of work, or
• It results in a "ban, limitation or restriction" on the performance of work or on the acceptance of work.

[21] This was articulated by the Full Bench in Mornington Peninsula Shire Council v ASU in relation to a ballot question banning a requirement to wear a uniform or a name badge:

"... a ban on the wearing of a uniform or a name badge, in and of itself does not amount to a "ban, limitation or restriction on... the acceptance of or offering for work by an employee." Though this might be the consequence in some circumstances, the ban on the wearing of the particular items of clothing in and of itself does not describe "the nature of the proposed industrial action". The industrial action that might follow, namely a ban, limitation or restriction on the acceptance of or offering for work in uniform or while wearing a name badge, must in our view be described in the action for which authorisation through the ballot is sought. It should not be left to inference."[12]

• [22] In this matter, Questions 15, 16, 17 and 21 describe actions that employees may take in addition to their normal work as a result of a ban on complying with Optia's policy. For example, an employee may include an EBA campaign message in their email signature. However, the questions do not describe any action that restricts, limits or delays the performance of normal work and/or the acceptance of work. While taking such action, might lead to industrial action (i.e. a stoppage of work while employees amend their email signature), it is not clear on the questions posed that this would be the case. The questions in current form do not specify that work must stop or be interrupted while the task is undertaken (compare, for example, the questions in Order PR768016 in Police Federation of Australia v Victoria Police T/A Victoria Police[13] ), or that employees will refuse to engage in normal work functions like emailing and attending video conferencing meeting unless certain requirements are met.

[23] In relation to Question 21, HACSU argued that communicating with media during work hours would necessarily lead to a delay in the performance of work. This much was conceded by Ms Booker in evidence. This is undoubtedly the case if such communication occurred during work hours. However, there is nothing in Question 21 that goes to the communication occurring in work hours and work being interrupted while communication occurs.

[24] In Mornington Peninsula Shire Council v ASU the Full Bench upheld the decision of Commissioner Bisset to reject a similar question to Question 21 on the grounds that it did not describe industrial action. The question in that matter was framed in the following terms:

"Indefinite or periodic industrial action in the form of not complying with restrictions on making comment or distributing information to other Council employees, public, residents, ratepayers, Councillors or the media"

[25] I cannot see how the current case can be distinguished from the Full Bench decision in relation to Questions 15, 16, 17 and 21.

[26] Accordingly, I determine that Questions 15, 16, 17 and 21 do not describe industrial action for the purposes of s 19(1) in their current form and therefore cannot be included in this PABO Order.

[27] Questions 18 and 20 relate to "delaying or restricting" normal duties while certain tasks are performed namely the "including or copying management staff into all work-related emails" (Question 18) and/or the displaying of "campaign posters, slogans and/or colours in the workplace and in vehicles" (Question 20)."

[28] I am satisfied that these questions meet the definition of industrial action under section 19(1). The tasks, in conjunction with the delay or restriction on performing normal duties until the tasks are performed, describes an action that meets the definition industrial action of section 19(1)(a).

[29] Question 18 and 20 are of a similar nature to two questions (question 2 and question 5) considered by the Full Bench in Mornington Peninsula Shire Council v ASU, in that the questions refer to a restriction on work and then define the actions that will take place during the restriction. The Full Bench upheld Commissioner Bissett's initial determination that question 2 and question 5 described industrial action under section 19(1)(a).

[30] Optia argued that delay itself is not an industrial action unless the delay can be distinguished from normal work performance.

[31] Ms Booker provided evidence that it was not standard practice to always copy in all management to work-related emails and that this could cause a delay (albeit a short delay).

[32] Ms Booker also provided evidence that displaying campaign materials may cause a short delay.

[33] Given the evidence and submissions before me, I am of the view that delay in the context of Questions 18 and 20 fits squarely in the definition of industrial action in section 19 (1)(a). I am satisfied that copying in all management staff to all work-related emails and displaying campaign posters, slogans and/or colours in the workplace and vehicles are actions that are different to work customarily performed. I am also satisfied that such actions, will cause a delay or restriction on the performance of normal duties. As reflected above, the Commission's role in considering questions in relation to a section 437 PABO application is to consider whether the described action is capable of being industrial action pursuant to s 19(1) without all the context of how the proposed action will be conducted. Delaying work to display materials might range from just a few minutes to a considerable period of time to erect a more complex display. In any event, in my view, even a short delay of work in these circumstances would meet the definition of industrial action.

[34] During the hearing Optia raised a number of safety concerns relating to Question 20. Whilst the concerns were not put as objections, and they are not a matter for this current application, I note that HACSU stated it will work with Optia to address safety concerns.

[35] I have determined that Question 18 and 20 meet the definition of industrial action under section 19(1)(a) and should be included in the PABO.

[36] On the basis of the material before me, including the declaration of Mr Paul Healey, Branch Secretary, setting out the steps taken by the HACSU in bargaining with the Optia and that it has been, and is, genuinely trying to reach agreement with Optia, I am satisfied that the requirements of s 443(1) have been met.

[37] I am otherwise satisfied that the requirements in section 443 of the Act have been met and will issue a PABO in the form of the draft order, with the removal of Questions 15, 16, 17 and 21, and consequential renumbering of questions.

[38] Based on a consent position reached by the parties, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days in respect to the action described in the Order at Question 1 and Question 18 (as re-numbered), both which refer to stoppages of work for a period from 15 minutes and up to 24 hours. Pursuant to section 443(5) of the Act, the period of written notice for the purposes of section 414(2)(b) of the Act in relation to Question 1 and 18 is 7 days. In relation to all other questions the standard 3 working day notification time will apply.

[39] The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot.

• [40] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 12 March 2026.[14] This also establishes the ballot period for the purpose of section 448A(2) of the Act.

[41] An Order has been separately issued in PR797094.

[42] I will shortly issue an Order and Directions in relation to the parties attending a compulsory section 448A conciliation conference including Directions to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] Witness evidence of Ms Bridey Booker, Regional Manager.

[2] Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union; Australian Municipal, Administrative, Clerical and Services Union v Mornington Peninsula Shire Council [2017] FWCFB 4740 (Mornington Peninsula Shire Council v ASU).

[3] [2014] FCA 1119 (Ambulance Victoria).

[4] Mornington Peninsula Shire Council v ASU at [24].

[5] United Firefighters Union of Australia v Easy [2013] FCA 763 at [153] as quoted in Mornington Peninsula Shire Council v ASU at [48].

[6] Ambulance Victoria v United Voice at [23].

[8] Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology [2014] FWC 8809 at [35].

[9] Mornington Peninsula Shire Council v ASU at [38].

[12] Mornington Peninsula Shire Council v ASU at [49].

[14] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

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