Union must wear Full Bench decision that ban on uniforms did not constitute "industrial action"

The recent decision by the Full Bench of the Fair Work Commission in Mornington Peninsula Shire Council v ASU [2017] FWCFB 4740 emphasises the importance of how a protected action ballot order is constructed when determining whether proposed actions fall within the meaning of "industrial action" under the Fair Work Act.

This decision means that, depending on the wording of the proposal, employees may not be able to vote to authorise protected industrial action in the form of wearing campaign material or banning uniforms.

The proposed ballot

In July 2017, the Australia Municipal, Administrative, Clerical and Services Union (ASU) sought a protected action ballot order (PABO) related to bargaining for a new enterprise agreement to cover the Mornington Peninsula Shire Council and certain of its employees. The ASU PABO included whether employees endorsed the taking of industrial action described as:

• Indefinite or periodic industrial action in the form of performing work while wearing campaign material and/or badges.
• Indefinite or periodic industrial action in the form of interrupting or stopping work in order to attach campaign material and/or badges on clothes worn at work.
• Indefinite or periodic industrial action in the form of wearing casual clothes.
• Indefinite or periodic ban on wearing uniform.
• Indefinite or periodic ban on the wearing of name badges.

Commissioner Bisset made the PABO, finding that the actions constituted "industrial action". The Council appealed.

Were the proposed actions capable of amounting to "industrial action"?

In granting the Council's appeal, the Full Bench held that although some of the proposed actions were capable of constituting "industrial action", some of the other proposals did not constitute "industrial action" under section 19 of the Fair Work Act. Specifically, they did not constitute industrial action because they were not capable of being a ban, limitation or restriction on the performance of work by an employee.

Attaching campaign material to work clothing: The Full Bench found that this constituted "industrial action". The Full Bench stated that the activity described in the proposal set the period of time which work was to be limited or restricted (ie. the time to attach the campaign material). During that time work would not be performed because the employee would be busy attaching campaign material and not performing work.

Working in campaign or casual clothing: The Full Bench found that this did not constitute "industrial action". It stated that it is not sufficient for the proposed action to suggest that employees will refuse to perform work other than in campaign or casual clothes. If that is the case, then it must be expressly stated. The proposal described the industrial action as the wearing of certain clothes, however the wearing of clothes does not impinge on the performance of work. It therefore did not constitute "industrial action".

Ban on uniform and name badges: The Full Bench stated that a restriction on work may be a consequence of these bans in some circumstances. For example, if employees refuse work while wearing a uniform or name tag. However the Full Bench stated the proposed action did not describe such a ban, limitation or restriction and that it should not be left to inference. As such it found that this was not "industrial action".

It's all in the wording

The Full Bench's decision demonstrates that the focus must be on the description of the nature of the proposed action when determining whether it constitutes "industrial action". It is insufficient to merely suggest or infer that an action will result in a ban, limitation or restriction on the performance of work by an employee. The ban, limitation or restriction on work must form part of the action described in the proposed action ballot order.

The decision does not suggest that a ban on uniform or requirement to wear campaign clothing can never constitute "industrial action". The Full Bench cited its earlier decision in Re: Australian Nursing Federation [2011] FWAFB 4809 where it was found that wearing campaign did constitute "industrial action". However it noted that the earlier decision was based on the understanding that an employee would only perform work if they wore campaign clothing. It does not stand for a general proposition that merely having employees wear campaign clothing is "industrial action".

However it does appear that as long as the application or a PABO expressly states that wearing campaign clothing or no uniform is a precondition for employees to perform work, it would be classified as a ban, limitation or restriction on work and constitute "industrial action".