In August 2023 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application for a protected action ballot order (PABO) in relation to certain employees of The Laminex Group (Laminex). This was during negotiations for a new Laminex enterprise agreement.
After receiving this application, Laminex objected to two parts of the PABO. Both objections related to questions regarding employees taking an unlimited number of work stoppages over an indefinite period to post on social media about the bargaining and/or industrial action. This was partly because such conduct might be in breach of the company's social media policy.
Laminex argued that posts on social media did not fall within the section 19 definition of industrial action under the Fair Work Act 2009 (Cth) (FW Act) as they did not relate to limitations or performance of work in a different manner.
The Fair Work Commission (FWC) considered what section 19 of the FW Act means. It held that section 19 means the Commission needs to:
- construe the words used in the proposed question;
- ascertain the nature of the proposed question; and
- determine whether such action is capable of falling within the exhaustive statutory definition of industrial action.1
Quoting the Federal Court of Australia, the FWC further considered that "the terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed."2
What did the Fair Work Commission decide?
The FWC stated that the industrial action definition under the FW Act includes the performance of work in a manner different from how it is usually performed, and a failure or refusal of employees to attend or perform work.
In light of this definition, the FWC held that the protected action did constitute industrial action under section 19 of the FW Act.
In an obiter comment, Commissioner Wright stated that "given that Laminex has a social media policy which covers personal use of social media by employees, posting on social media about the bargaining and/or industrial action may amount to the performance of work by an employee in a manner different from that in which it is customarily performed". However, the Commissioner did not make a direct finding on this point.
The ballot was approved and voting closed on 12 September 2023. The ballot endorsed the proposed social media-related industrial action.
What does this mean for employers?
Employers need to be mindful that employees have a wide range of industrial actions open to them when negotiating an enterprise agreement.
In addition, the fact that a workplace policy prohibits specific actions such as posting on social media may not be enough to prevent industrial action.
When presented with a potential industrial action ballot, employers should ensure that any wording is as clear and concise as possible to avoid ambiguity. Employers are also reminded that PABOs were a subject of the Secure Jobs, Better Pay reforms. As of 6 June 2023, if the FWC makes a PABO it will also make an order directing bargaining representatives to attend a conference during the ballot period. This is to facilitate parties reaching an agreement on any unresolved issues before industrial action is taken.
As of 6 June 2023 the FWC is also able to approve eligible protected action ballot agents. These agents, once approved, are able to conduct protected action ballots to determine whether industrial action will occur or not. The FWC keeps a list of all current protected action ballot agents here.
If you have been presented with a PABO and are unsure of its terms or need further clarification on the new laws regarding industrial action, please reach out to our experienced employment and workplace team.
1 Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2017] FWAFB 526.
2 Ambulance Victoria v United Voice [2014] FCA 1119.
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