In a recent decision of the Fair Work Commission concerning an application for a protected action ballot of employees, Commissioner Bissett held that lawful industrial action included refusing to respond to non urgent calls or emails, and including a statement to this effect in an “out of office” email notification.

The application, filed by the Australian Municipal, Administrative Clerical and Services Union (ASU) was opposed by the employer on a number of grounds, including that the proposed industrial action sought by the ASU was invalid under the Fair Work Act 2009 (Cth) (FW Act).  The proposed industrial action opposed by the employer included not responding to non urgent emails or voicemail messages until after 1.00pm each day and placing out of office notification stating the following:  “I am currently undertaking industrial action because I believe staff should be treated with respect and dignity at work.  Because of this, I will not be responding to emails after 1.00pm.  If you have any concerns or comments, please contact [the employer]”.

The employer argued that the out of office message (together with other actions proposed) did not constitute industrial action as defined in the FW Act and/or would not be protected industrial action as they involved using the property of the employer in an impermissible manner.  The employer complained that email had been provided and paid for by the employer, was the property of the employer and the employer should not be required to subsidise an industrial campaign by allowing employees to utilise its property to take industrial action.

In rejecting the employer’s arguments, Commissioner Bissett held that the “out of office” message action (and others) fell within the definition of industrial action under the FW Act. In reaching her conclusions, Commissioner Bissett found that it was inevitable that employees will, in some way, use the property or equipment of the employer in taking industrial action and that it would be difficult for employees to not, in some way, use an employer’s property to take industrial action, 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” [27].

The Commissioner was also satisfied that the action involving not answering non emergency calls constitutes “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”, and relied on the decision of CPSU v Victorian Legal Aid [2013] FWC 1090 (which dealt with whether the attachment of a footer to emails constituted industrial action) in which Deputy President Smith found that “methods of communication evolve over time” and the FW Act should not be construed narrowly in relation to what will (and will not) constitute industrial action.

Redefining industrial action?

As modes of communication change and workplaces adapt, the impact of traditional forms of industrial action, like a stoppage of work or a ban on overtime, will be reduced.   New methods for engaging in industrial action are on the rise and will be adopted by employees and their representatives in the future.  This decision is a useful lesson for employers on the Commission’s flexibility as to what constitutes lawful industrial action in today’s modern world. 

Australian Municipal, Administrative, Clerical and Services Union v Lend Lease (B2014/989), 20 August 2014