A union applied to FWA for a protected action ballot order.  The ballot sought authorisation for industrial action in the form of distributing information to the employer’s clients and the media about the reason for industrial action and the wearing of campaign clothing.  FWA granted the order.

On appeal, a Full Bench of FWA (by majority) upheld the first instance decision.  It held that the proposed acts constituted industrial action, which is defined in the Fair Work Act 2009 (FW Act) to include alteration in the “performance of work” that limits or delays work.  The tribunal held that employees’ work may cease or be interrupted in order to communicate with clients or the media.  Accordingly, it was the performance of work in a different manner from the usual that resulted in a delay to work.  Further, it found that if an employee is only prepared to work wearing a specific item of clothing, that is a limitation on the performance or acceptance of work by the employee. 

The minority held the proposed conduct was not industrial action and was merely a form of employee disobedience. 

Appeal of decisions Mornington Peninsula Shire Council [2011] FWAFB 4809