WHO SHOULD READ THIS

  • All employers engaged in bargaining with their workforce.

THINGS YOU NEED TO KNOW

  • The mere communication of industrial action does not constitute industrial action. 

WHAT YOU NEED TO DO

  • The determination of whether proposed action is industrial action requires an examination of both the proposed action and whether the conduct falls within the definition of industrial action. Employers should under take this exercise for each element of the protected action ballot order that is being sought. 

The Fair Work Commission has considered whether an out of office message on employees’ email accounts, referring to a delay in responding to emails, is itself protected industrial action for the purposes of an application for a protected action ballot order.

Background
The Independent Education Union of Australia (IEUA) applied to the Fair Work Commission (FWC) for protected action ballot orders (PABOs) in relation to a number of independent schools.  The IEUA filed 279 applications to have a number of questions included on the ballot order relating to the type of industrial action which was proposed to be undertaken. 

In summary, the proposed industrial action included:

  • unlimited stoppages of one day’s duration
  • employees to delay responding to/actioning non-urgent emails (except for emails which deal with a genuine health or safety matter) for a period not exceeding 30 days and will include an ‘out of office’ message on their email referring to protected industrial action as the reason for the delay in responding 
  • bans, for an indefinite period, on any duties during the employees’ scheduled ‘non-contact’ time, and
  • non-attendance, for an indefinite period of time, at staff meetings or other meetings. 

At first instance, Commissioner Booth made the PABO but removed the reference to the ‘out of office’ reply message on the basis that the action proposed to be taken was not considered to be work performed by employees.

The IEUA appealed this decision and argued that the two elements in the question (i.e. delay in responding and ‘out of office’ message) involved one and the same action.  The IEUA further argued that the notion of sending a non-responsive email response instead of a responsive email response was a ban or limitation on the performance of work.

The Full Bench upheld Commissioner Booth’s decision and considered that the first action (i.e. delay in responding) was clearly a ban and limitation on the performance of work.  The second action (i.e. ‘out of office’ message) involved a form of communication which did not involve an additional ban or limitation over and above the first action.  That is, the result of the second action was not a restriction or limitation or delay in the performance of work. 

The Full Bench held that the second action could be more accurately described as a communication of the first action therefore was not itself industrial action.  The Full Bench stated that ‘the mere communication of industrial action has not been held to constitute industrial action’.  Accordingly, the PABO as amended by Commissioner Booth was upheld. 

It is important for employers to examine the proposed industrial action in a PABO to determine whether the action taken is ‘industrial action’ as defined in the Fair Work Act 2009 (Cth).  Employers should then raise any concerns about the proposed industrial action in the hearing at the time that an application is made for a PABO, as it will be difficult (if not impossible) to raise these issues at a time when the industrial action is already on foot.

As this decision highlights, it is important to break up each type of action proposed by employees and examine each objectionable element of the action individually to determine whether it is, in fact, industrial action.