[2011] FWAFB 4809 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT WATSON |
MELBOURNE, 22 JULY 2011 |
Appeal against decision [[2011] FWA 4235] of Vice President Lawler at Melbourne on 4 July 2011 in matter number B2011/3079 - permission to appeal granted - appeal dismissed.
DECISION OF SENIOR DEPUTY PRESIDENT WATSON SDP AND COMMISSIONER GOOLEY
[1] This is an appeal, pursuant to s.604 of the Fair Work Act 2009 (the Act) by Mornington Peninsula Shire Council (MPSC), for which permission is required, against a decision by Vice President Lawler 1 in which he made an order2 for a protected action ballot, upon application by the Australian Nursing Federation (ANF).
[2] Although MPSC advanced several grounds they all related to one issue, the inclusion in the ballot questions of question 5 proposed by the ANF:
“Do you, for the purpose of advancing claims in the negotiation of an enterprise agreement between the employees covered by the proposed agreement and Mornington Peninsula Shire Council:
. . .
Authorise industrial action by Registered Nurses in the form of distributing information to clients, and the media about the reason for industrial action, and the wearing of campaign clothing?”
[3] MPSC’s appeal grounds were directed to errors said to have been made by Vice President Lawler in including question 5 in the order. The grounds were:
“1. Regards to purpose:
The learned Vice President erred in the Decision by having insufficient regard to the policy and purpose behind Division 8 of Part 3-3 of the Fair Work Act 2009 (Cth) (‘FW Act’), namely to grant permission to steps which would otherwise be ‘industrial action’.
2. Alternative: Error in power to order Question 5:
Alternatively to ground (l), that the learned Vice President erred by ordering Question 5 in the Respondent’s ballot application, on the ground that he had no power to make a ballot order permitting Question 5.
3. Error in relation to ‘industrial action’:
The learned Vice President erred, in finding that Question 5 in the Ballot Order was in the nature of authorising what would otherwise be ‘industrial action’ (or, alternatively, not ‘protected industrial action’).
4. The error of nexus:
The learned Vice President erred in finding there was a sufficient (or alternatively any) connection between Question 5 and either:
(a) the genuine trying by the bargaining representative to reach an agreement with the employer; and/or
(b) the performance or duties of employees balloted, and their work.
5. Form of Question 5:
The learned Vice President erred in the Decision by not finding that the form of Question 5 was not permissible, on the ground that Question 5:
(a) was two questions, or alternatively a compound question of two parts; and
(b) was ambiguous, in that:
(i) it did not contain sufficient detail; or
(ii) alternatively, was not sufficient to enable a choice to be made in respect of the putative ‘industrial action’ proposed.”
[4] The first four grounds rested on the proposition that the action for which authority was sought in question 5 was not “industrial action”, as defined in s.19 of the Act. The final ground rested on the proposition that the form of question 5 was not permissible.
[5] In relation to question 5, Vice President Lawler decided:
“[5] Mr Katz, for the Council, objected to the inclusion of Question 5 on the basis that the action described in the question is not ‘industrial action’ as defined in s.19 of the FW Act and therefore cannot properly be included in a list of question for a protected action ballot.”
[6] He then set out in full the terms of s.19 of the Act and continued:
“[7] Paragraphs 19(1)(a) and (b) are concerned with the way in which work is performed. Performance of work in a manner that is contrary to a lawful direction about how that work is to be performed prima facie amounts to industrial action as defined in s.19.
[8] In my view, the actions to which question 5 is directed are action that are, depending upon the circumstances, capable of amounting to industrial action as defined and therefore can properly be included in a list of questions for a protected action ballot.
[9] Prima facie, an employer is entitled to give a lawful direction to an employee about
(a) the information or types of information that are, or are not, to be conveyed by an employee during the course of their employment to members of the public and others with whom the employee interacts in their work capacity; and
(b) clothing that must, or must not, be worn by an employee when performing his or her work.
[10] Such a direction may properly be characterised as a direction about the way in which work is to be performed. As such, a refusal to follow such a direction will involve industrial action. It follows that employees who wish to take action of this sort as part of a campaign for an enterprise agreement and yet ensure that the taking of such action does not involve unprotected industrial action have a legitimate basis for seeking to include a question such as question 5 in a protected action ballot.
[11] There can, and have, been industrial disputes about such matters. Indeed, the wearing of union badges and other union insignia has been a contentious industrial matter since the early years of the 20th century.”
[7] Section 19(1) of the Act relevantly states:
“19(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.”
Permission to appeal
[8] The appeal is not of right. It requires “permission” within the terms of s.604(2) of the Act, which provides that “(w)ithout limiting when FWA may grant permission, FWA must grant permission if FWA is satisfied that it is in the public interest to do so”.
[9] The appeal raises issues concerning industrial action involving communication with clients and the media and the wearing of “campaign clothing”, which we understand not to have been considered at a Full Bench level in relation to s.347 of the Act. Further, given the widespread nature of workplace agreements, and ballot orders sought in relation to the making of them, the issues may have relevance beyond the immediate circumstances of the ANF application. In these circumstances, we are satisfied that it is in the public interest to grant permission to appeal.
Submissions and consideration
Industrial action
[10] We deal with the first four appeal grounds together. They involve various propositions based on the contention that the action identified in question 5 does not constitute “industrial action” within the meaning of s.19 of the Act.
[11] MPSC submitted that Vice President Lawler gave insufficient regard to policy and purpose behind Division 8 of Part 3-3 of the Act:
“(a) the nature of the protection afforded by the ballot will not travel beyond the definition of industrial action in the FW Act;
(b) the definition of ‘industrial action’ is identifiable with the protection from suit granted by ‘protected industrial action’; and
(c) the parties are given the freedom to take ‘industrial action’ in this protected way, as a part of settling their disputes with an enterprise agreement.”
[12] MPSC submitted that Vice President Lawler had limited regard to this policy, focussing instead on features of the common law when considering question 5. It submitted that the subject matter of question 5 has nothing do with the actual performance of work dealing, at their highest, with matters collateral to the work performed.
[13] MPSC submitted, in the alternative, that Vice President Lawler exceeded jurisdiction in going beyond the simple words in s.19 of the Act, and into non-industrial action such as third party communications. He confused the obligation to abide by a lawful direction with the definition of “industrial action”.
[14] In reviewing relevant authority, MPSC noted that no single decision deals with external communication to a third party as an iteration of industrial action, but submitted that the authorities, in considering “industrial action” resulted in definitions which had at their heart a foundation in the performance, or non-performance of work. It submitted that the reasoning of Vice President Lawler extended the meaning of “industrial action” beyond the direct relationship between employer and employee, in the relationship of work – its performance, non-performance, limitation, ban and other. Question 5 is more properly about the question of communication and to describe it as “concerned with work” misconceives the direct nature of s.19 of the Act and its connection with the performance of work.
[15] MPSC submitted that to focus upon the wearing of things, rather than the doing of things, is to cast the net beyond what is intended by the world of work, which is the category contemplated by “industrial action”, as defined within s.19 of the Act. It submitted that the plain words of s.19 require that work be performed, not performed, ceased or limited in a way to fall within s.19.
[16] The ANF submitted that there was no error in the decision of Vice President Lawler in relation to question 5 because the activities within it are capable of being industrial action. It submitted that, in contrast to an unduly restrictive view of “performance of work” in s.19 of the Act by MPSC, it means “in accordance with reasonable and lawful directions of the employer”.
[17] The ANF submitted that the wearing of campaign clothing, which is inconsistent with the MPSC clothing policy 3 and the absence of approval by the MPSC,4 would constitute “industrial action” within the meaning of s.19 of the Act.
[18] The ANF further submitted that the communications identified within question 5 would occur whilst employees were working and would clearly fall within the meaning of “industrial action” in s.19 of the Act, involving a restriction, limitation or delay in the performance of work.
[19] There can be no doubt, given the prelude to question 5, and the other questions posed in the ballot order, that the order seeks authority for industrial action for the purpose of advancing claims in the negotiation of an enterprise agreement between the employees covered by the proposed agreement and MPSC.
[20] It may be noted that question 5 in the ballot order does not seek authority for the distribution of information and wearing of campaign clothing generally. Rather, it seeks authority for industrial action of that kind. It is accepted that the distribution of information to clients and the media and the wearing of campaign clothing could occur beyond the scope of industrial action. The ballot order does not seek, and an affirmative response to question 5 would not provide, authority for actions of those kinds which do not fall within the meaning of “industrial action”.
[21] The central issue in the appeal, in relation to grounds 1 to 4, is whether the action described in question 5 - “Do you . . . Authorise industrial action by Registered Nurses in the form of distributing information to clients, and the media about the reason for industrial action, and the wearing of campaign clothing” - is capable of falling within the meaning of “industrial action” within s.19 of the Act.
[22] In our view, the actions specified within question 5 are capable, depending upon the circumstances, of constituting “industrial action” within the meaning of s.19 of the Act.
[23] In respect of the distribution of information to clients, and the media about the reason for industrial action, one such circumstance would arise if employees ceased or interrupted their work in order to communicate the reasons for industrial action to clients or the media. In that circumstance, the action would clearly involve the performance of work by an employee in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or a delay in, the performance of the work (s.19(1)(a)) and a ban, limitation or restriction on the performance of work by an employee (s.19(1)(b)).
[24] We find that the wearing of campaign clothing is capable of constituting 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)).
[25] In our view, the term “the performance of work” within s.19(1)(b) of the Act is not restricted to how the tasks associated with a particular job are performed. It involves for example when work is performed, where work is performed, how work is performed and the conditions under which work is performed.
[26] Clearly ss.19(1)(a) and (b) of the Act are directed at different conduct. In s.19(1)(a) the conduct must cause a particular result, namely a restriction or limitation on, or a delay in the performance of work.
[27] In s.19(1)(b) of the Act there need be no result from the conduct; there must simply be a ban limitation or restriction on the performance of work or on the acceptance of or offering for work by an employee.
[28] In Davids Distribution Pty Ltd v National Union of Workers 5 consideration was given to the meaning ascribed to s.4 of the then Workplace Relations Act 1996 (the WR Act) which included a definition of “industrial action” at s.4(1)(c) of the definition as follows:
“(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute.”
[29] The Full Court of the Federal Court determined that s.4(1)(c) of the WR Act ought to be read as applying only to limitations on the work of those imposing the bans. 6 In their judgement, with which Burchett J relevantly agreed,7 Wilcox and Cooper JJ adopted the tentative view expressed by the Full Court in Construction, Forestry, Mining and Energy Union and Others v Giudice and Others8 that s.4(1)(c) was “directed to conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it”.
[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)).
[33] Of course, if the action by employees is authorised or agreed to by the employer then by virtue of s.19(2)(a) of the Act it is not industrial action.
[34] We are satisfied, in respect of both the communications and the campaign clothing that, the action of the type indicated in question 5 is capable of constituting “industrial action” within the meaning of s.19 of the Act.
[35] We find that Vice President Lawler was correct in finding that the actions to which question 5 is directed are actions that are, depending upon the circumstances, capable of amounting to “industrial action” as defined and therefore can properly be included in a list of questions for a protected action ballot. 9
[36] We dismiss the appeal in relation to grounds 1 to 4. We find that the actions identified in question 5 are capable of constituting “industrial action” within the meaning of s.19 of the Act. We are not persuaded that Vice President Lawler misapplied s.19 of the Act, or acted without regard to the purpose of the ballot order provisions within the Act or acted beyond jurisdiction.
The form of question 5
[37] MPSC submitted that question 5 is ambiguous in that it seeks authorisation for two (if not three) distinct forms of action. Further, it submitted that question 5 lacks the particularity required to enable it to take remedial or response action, being expressed as a global statement. We are not persuaded that question 5 is impermissible for either reason advanced by MPSC.
[38] A Full Bench in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 10 considered a composite question involving two forms of alternate industrial action. It found that:
“[21] The criticism of question eight is unfounded. It might have been clearer to split that question into two parts, one dealing with indefinite bans on overtime and one with periodic bans. But the question is not meaningless. Seen in its full context the question asks whether employees will endorse bans on overtime which are either indefinite or periodic. An affirmative answer would indicate endorsement of both types of ban.”
[39] In our view the same reasoning applies in respect of this criticism by MPSC of the form of question 5.
[40] We think the second criticism of question 5 by MPSC is also unfounded. All that s.437 requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. 11 The question of sufficient specificity of the industrial action to allow employers to take remedial or response action arises in relation to the notice requirements for industrial action in s.414 of the Act. Whilst it may be that any s.414 notice issued at some future time would need to be more specific, question 5 is expressed adequately to enable employees to respond to it, seeking authorisation of industrial action in the form indicated.
[41] We dismiss the appeal in relation ground 5.
Conclusion
[42] We grant permission to appeal but dismiss the appeal.
SENIOR DEPUTY PRESIDENT
DECISION OF SENIOR DEPUTY PRESIDENT KAUFMAN
[43] I have read the reasons for decision of the majority which has identified the issue to be decided on this appeal. Whilst I agree that permission to appeal should be granted, I would allow the appeal and quash the order of Vice President Lawler.
[44] It should be remembered that a protected action ballot order made under s.437 of the Act authorises a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement. It is somewhat ironic that in this matter the employer contends that the conduct sought to be authorised does not constitute industrial action whereas the union contends the contrary. It will be useful to set out the relevant portions of the legislation:
The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.
Subdivision B—Protected action ballot orders
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 FWA 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) . . .
Matters to be specified in application
(3) The application must specify:
(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.
. . .
443 When FWA must make a protected action ballot order
. . .
(3) A protected action ballot order must specify the following:
. . .
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
. . .
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
[45] Section 414 is contained in division 2 of Part 3-3 - Industrial Action. It is worthwhile setting out the relevant portions of that division:
“Division 2—Protected industrial action
Subdivision A—What is protected industrial action
408 Protected industrial action
Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:
(a) employee claim action for the agreement (see section 409);
. . .
Employee claim action
(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
Protected action ballot is necessary
(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).
. . .
Subdivision B—Common requirements for industrial action to be protected industrial action
413 Common requirements that apply for industrial action to be protected industrial action
Common requirements
(1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.
Type of proposed enterprise agreement
(2) The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi-enterprise agreement.
Genuinely trying to reach an agreement
(3) The following persons must be genuinely trying to reach an agreement:
(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;
(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement—the bargaining representative of the employee.
Notice requirements
(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.
414 Notice requirements for industrial action
Notice requirements—employee claim action
(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
. . .
Subdivision C—Significance of industrial action being protected industrial action
(1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve:
(a) personal injury; or
(b) wilful or reckless destruction of, or damage to, property; or
(c) the unlawful taking, keeping or use of property.
(2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action.”
(My emphasis)
[46] It is evident that immunity from legal action is provided if, for the purposes of advancing claims in relation to a proposed enterprise agreement, protected industrial action is organised or engaged in.
[47] In order that the wide general law immunity be conferred it is necessary that what is being organised or engaged in is protected industrial action. I have set out above the legislative steps that must be satisfied in order that the person who engages in the conduct gains that immunity. In the first place the conduct must be industrial action. Then it must be the subject of a protected action ballot order. If a protected action ballot order is made it must then be authorised by a protected action ballot. If authorised by a protected action ballot the employer must be notified in writing of it before it can lawfully be taken. Once these requirements have been met and the conduct occurs, it is protected industrial action.
[48] The object of the Division is to establish a process to determine whether employees wish to engage in particular protected industrial action. 12 In order to determine whether or not they do, Fair Work Australia must first make a protected action ballot order that must specify the nature of the proposed industrial action.13 Before protected industrial action may be taken the industrial action must be authorised by a protected action ballot.14 Industrial action will be authorised by a protected action ballot if the action was the subject of the ballot, at least 50% of the employees on the roll of voters for the ballot voted in the ballot and more than 50% of the valid votes were votes approving the action.15 Once the protected industrial action has been authorised by a ballot, written notice must be given to the employer at least three working days before the action is engaged in.16
[49] It is apparent that a fairly elaborate process must be gone through in order that employees may take industrial action with the immunity from suit provided to them if the industrial action is protected industrial action.
[50] Notably, the immunity from suit does not extend to preventing an action for defamation being brought in relation to anything that occurred in the course of industrial action. 17 This is significant having regard to the nature of the conduct that is sought to be authorised.
[51] Whether or not action taken, or conduct engaged in, by employees to advance their claims is protected industrial action or not can have important consequences, both for the employees and the employer. If the conduct constitutes protected industrial action the employer has limited options to prevent or stop it. If it constitutes unprotected industrial action those who engage in it leave themselves open to being sued as well as having an order made that the industrial action stop or not occur. 18 If the conduct engaged in is not industrial action, it falls outside the operation of the Act and gains no protection from it. Nor is conduct that is not industrial action able to be stopped by utilising the provisions of the Act.
[52] Thus it is critical that the conduct that occurs under the authority of the ballot be industrial action. If the ballot authorises action that is not industrial action, when conduct occurs under the authority conferred by the ballot, it will not be protected industrial action and leave those who participate in it open to suit, but not to proceedings under the Act. Not only is it beyond the jurisdiction of Fair Work Australia to authorise a ballot for the engaging in conduct that would not be industrial action, it is inappropriate that its imprimatur be given. The consequences for those engaging in such conduct could be severe were a court ultimately to hold that what was occurring was not protected industrial action because the conduct did not amount to industrial action.
[53] In my view it is desirable that the question that is to be put to the vote identify with reasonable particularity the industrial action that is sought to be authorised. Although in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 19 a full bench observed that all that s.437 requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them,20 the conduct in question must nevertheless constitute industrial action. In my view, a question that authorises the engaging in conduct that may or may not constitute industrial action does not satisfy the requirements of s.437(3)(b) that requires that the question include “the nature of the proposed industrial action.”
[54] The scheme of the Part drives one inexorably to the definition of industrial action. Thus it is not necessary to decide whether the conduct the subject of the question - distributing information to clients and the media about the reason for the industrial action, and the wearing of campaign clothing - a form of employee disobedience somewhat akin to civil disobedience, would constitute industrial action within the generally understood meaning of that expression. However, there is a suggestion in the cases that mere communication is not industrial action at common law. 21
[55] Insofar as industrial action under the Act is concerned there is authority for the proposition that mere communication does not constitute industrial action. 22 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.23 However, communication for the purpose of introducing or furthering the imposition of bans, limitations, etc. may constitute industrial action.24 It is the nature of the communication that must govern the question whether particular communication constitutes industrial action.
[56] Industrial action is defined in s.19 of the Act:
“19 Meaning of industrial action
(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.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.”
[57] It should be noted that the definition is not an inclusive definition. For the purposes of the Act industrial action means what s.19 says it means.
[58] For the purposes of this matter it is only sub-sections (a) and (b) of s.19(1) that are relevant.
[59] The first element of (a) is that there be a performance of work by an employee. Here the work performed by the 19 or so employees affected is that of supporting new mothers after they have given birth. They perform their work either at the council’s maternal and child healthcare centre or they visit the homes of those whom they support. The second element is the manner in which the work is performed. It must be in a manner different from that in which it is customarily performed. The third element, which is an alternative to the second, is that there be the adoption of a practice in relation to the work. In each instance, the action must result in a restriction or limitation on, or a delay in, the performance of the work.
[60] Under (b) there must be a ban, limitation or restriction on the performance of work by the employee engaging in the conduct or on the acceptance of or offering of work by the employee.
[61] There are two types of conduct contemplated by question 5: first, the distribution of information to clients and the media and, secondly, the wearing of campaign clothing. It is necessary to ascertain whether either type of conduct falls within the definition of industrial action in s.19(a) or (b).
[62] I fail to see how either type of conduct falls within either limb of the definition. The first conduct sought to be approved - the distribution of information - even be it within working hours, says nothing about performing the work in a manner different from that in which it is usually performed or the adoption of a practice in relation to the work. There is nothing in the nature of the proposed conduct that suggests that it would result in a restriction or limitation on, or a delay in, the performance of the work. 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. However, the conduct sought to be approved does not contemplate the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which would be a restriction or limitation on, or a delay in, the performance of the work. In my view, conduct that had either of those effects would not be conduct that was authorised by an affirmative vote in favour of question 5.
[63] The dissemination of information is clearly not a ban, limitation or restriction on the performance of work and does not fall within s.19(b).
[64] I fail to see how the wearing of campaign clothing falls within either limb of the definition. Wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed. It must be remembered that the people concerned are maternal and healthcare nurses who wear casual clothing whilst performing their duties, albeit their employer has a policy about the wearing of uniforms which is honoured in the breach. Speculation is inappropriate, but there may conceivably be situations where particular work can only be performed whilst wearing certain clothing and the refusal to wear that clothing could affect the manner in which the work is performed and result in a restriction or limitation on, or a delay in, the performance of the work. But this is not such a case. Thus the conduct does not fall within s.19(a).
[65] By wearing campaign clothing the employee does not ban the performance of the work, limit the performance of the work or restrict the performance of the work. Nor does such an employee ban, limit or restrict the acceptance of or offering for work by the employee. All that the conduct contemplates is the wearing of particular clothing whilst the work is performed. The conduct does not fall within s.19(b).
[66] Although it is not necessary for me to decide whether the form of the question is appropriate, had the conduct been industrial action I would agree with the reasoning of the majority.
SENIOR DEPUTY PRESIDENT
Appearances:
E. White of Counsel with B. Megennis for the Australian Nursing Federation.
T. Donaghey with G. Katz for the Mornington Peninsula Shire Council.
Hearing details:
2011.
Melbourne:
July 12 and 13.
3 Exhibit ANF1 in the appeal.
4 Transcript in the proceedings before Vice President Lawler, at paras 109 and 111.
5 [1999] FCA 1108.
6 [1999] FCA 1108, at para 52.
7 [1999] FCA 1108, at para 119.
8 (1998) 159 ALR 1, at paras 13-14.
9 [2011] FWA 4235, at para 8.
11 [2010] FWAFB 526, at para 19.
12 Section 436.
13 Section 437(3)(b).
14 Section 409(2).
15 Sections 459(a), (b) & (c).
16 Section 414(1) & (2).
17 Section 415(2).
18 Section 418.
20 Ibid. at [19].
21 See Miles v Wakefield M.D.C. [1987] 1 AC 539 at 558- 559.
22 Davids Distribution Pty Ltd v National Union of Workers FCA 1108 at [52] per Wilcox and Cooper JJ.
23 See also, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australia Postal Corporation (2010) 201 IR 363, per Barnes FM at [110] to [112].
24 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 at 30; Williams v Construction, Forestry, Mining and Energy Union (2008) 179 IR 441 at [90], [91].
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