recent decision of the Fair Work Commission1  has ruled that, among other things, attaching,incorporating or distributing union and industrial campaign-related material to outgoing company correspondence and placing messages on company vehicles are valid forms of industrial action.

The facts

On 17 July 2014, the Australian  Municipal, Administrative Clerical and Services Union (ASU) applied to the Fair Work Commission for a protected action ballot order to allow employees of Lend Lease responsible for the maintenance and management of Coliban Water to determine whether they wished to engage in certain protected industrial action.

The industrial action proposed by the ASU in its application for a protected action ballot order included:

  • attaching, incorporating or distributing ASU and industrial campaign related material to outgoing Lend Lease correspondence, materials and displays;
  • wearing, distributing and posting ASU campaign material in support of the proposed enterprise agreement;
  • not responding to non-emergency emails and phone calls until after  1pm each day in conjunction with the use of out of office notifications and voicemail messages; and
  • writing messages representing the concerns of Lend Lease staff on Lend Lease or Coliban Water vehicles.

Lend Lease opposed the application for a protected action ballot order on  a number of bases, including that the proposed action did not constitute industrial action as defined in the Fair Work Act 2009 (Cth) (FW Act) and/or it would not be a protected industrial action, as it was defacing private property or using the property of Lend Lease in an impermissible manner.

The decision

Commissioner Bissett found in favour of the ASU, dismissing Lend Lease’s objections to the ASU application in their entirety, and ordering the protected ballot in the draft form proposed by the ASU.

After considering the definition of “Industrial Action” in the FW Act and relevant case law2, Commissioner Bissett rejected Lend Lease’s argument on the following grounds:

  • Lend Lease provided no case law or other evidence to suggest that using an employer’s equipment or property for the purposes of industrial action, as was proposed by the ASU, means the action is not industrial action as defined in the FW Act.  Commissioner Bissett found that it is inevitably the case that employees will, in some way, use the property of an employer in taking industrial action.  In rejecting this  ground, Commissioner Bissett drew an analogy with other forms of industrial actions, noting that:

‘It is difficult to see how a bus driver could take industrial action in the  form of refusing to collect fares without using the employer’s property (the bus) to drive while implementing the ban’;

  • Following the majority decision  in Re Mornington, Commissioner Bissett was satisfied that wearing, distributing or posting union campaign material is industrial action for the purposes of the FW Act;
  • The proposed action involving not answering non-emergency emails and phone calls constituted ‘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’, as provided by the FW Act. Commissioner Bissett also noted the decision of CPSU v Victorian Legal Aid3 in relation to the use of email footer as part of industrial action; and
  • Although the ASU’s proposal to place campaign messages on Lend Lease or Coliban Water vehicles raised the possibility of ‘wilful or reckless destruction of, or damage to, property’, which would not be protected under the FW Act, Commissioner Bissett held that such action was still “industrial action’ within the meaning of the FW Act. In addition, whether damage occurs or not as a result of such action could not be known at the time of the decision.

Bottom line for employers

The Commission’s decision provides employers with guidance on what forms of industrial action are protected under the FW Act, making it clear that modern industrial action encompasses much more than the traditional tools down, stop work approach.

In addition to the specific forms of industrial action that were accepted in this case, employers should also take note of Commissioner Bissett’s observations in relation to the use  of company property more broadly.

In this respect, employers facing industrial action should recall that the proposed use of company cars was in this case considered valid, despite the risk of such action resulting in damage to the company’s property.