Note: An appeal pursuant to s.604 (C2011/5033) was lodged against this decision - refer to Full Bench decision dated 22 July 2011 [ FWAFB 4809] for result of appeal.
 FWA 4235
Fair Work Act 2009
Australian Nursing Federation (Victoria Branch)
Mornington Peninsula Shire Council
VICE PRESIDENT LAWLER
MELBOURNE, 4 JULY 2011
Proposed protected action ballot by employees of Mornington Peninsula Shire Council.
 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).
 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.
 I am satisfied that the requirements of the FW Act have been met in relation to the application and that an order should issue.
 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:
“Do you, for the purpose of advancing claims in the negotiation of an enterprise agreement...
Authorise industrial action by Registered Nurses in the form of distributing information to clients, and the media about the reason for the industrial action, and the wearing of campaign clothing?
 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.
 Section 19 provides:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or 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;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).”
 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.
 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.
 Prima facie, an employer is entitled to give a lawful direction to an employee about
(a) the information or types of information that are, or are not, to be conveyed by an employee during the course of their employment to members of the public and others with whom the employee interacts in their work capacity; and
(b) clothing that must, or must not, be worn by an employee when performing his or her work.
 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.
 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.
 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.
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