Note: An appeal pursuant to s.604 (C2011/5033) was lodged against this decision - refer to Full Bench decision dated 22 July 2011 [[2011] FWAFB 4809] for result of appeal.

[2011] FWA 4235

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Fair Work Act 2009
s.437—Protected action

Australian Nursing Federation (Victoria Branch)
Mornington Peninsula Shire Council



Proposed protected action ballot by employees of Mornington Peninsula Shire Council.

[1] This is an application by the Australian Nursing Federation (Victoria Branch) (ANF) for a protected action ballot order in relation to certain employees of the Mornington Shire Council (Council).

[2] There was no substantive opposition to the application. That is, there is no dispute that an application complying with the FW Act has been made and the Council accepts that the ANF has been and is genuinely trying to reach an agreement with the Council.

[3] I am satisfied that the requirements of the FW Act have been met in relation to the application and that an order should issue.

[4] There was on contested issue between the parties and it relates to the form of the order. Question 5 in the draft order proposed by the ANF is:

[5] Mr Katz, for the Council, objected to the inclusion of Question 5 on the basis that the action described in the question is not “industrial action” as defined in s.19 of the FW Act and therefore cannot properly be included in a list of question for a protected action ballot.

[6] Section 19 provides:

[7] Paragraphs 19(1)(a) and (b) are concerned with the way in which work is performed. Performance of work in a manner that is contrary to a lawful direction about how that work is to be performed prima facie amounts to industrial action as defined in s.19.

[8] In my view, the actions to which question 5 is directed are action that are, depending upon the circumstances, capable of amounting to industrial action as defined and therefore can properly be included in a list of questions for a protected action ballot.

[9] Prima facie, an employer is entitled to give a lawful direction to an employee about

[10] Such a direction may properly be characterised as a direction about the way in which work is to be performed. As such, a refusal to follow such a direction will involve industrial action. It follows that employees who wish to take action of this sort as part of a campaign for an enterprise agreement and yet ensure that the taking of such action does not involve unprotected industrial action have a legitimate basis for seeking to include a question such as question 5 in a protected action ballot.

[11] There can, and have, been industrial disputes about such matters. Indeed, the wearing of union badges and other union insignia has been a contentious industrial matter since the early years of the 20th century.

[12] A ballot order has issued in conjunction with these reasons.



B. Megennis for the Australian Nursing Federation (Victoria Branch).

G. Katz for the Mornington Peninsular Shire Council.

Hearing details:



July 4.

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