[2017] FWCFB 4740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mornington Peninsula Shire Council
v
Australian Municipal, Administrative, Clerical and Services Union
(C2017/4742)
Australian Municipal, Administrative, Clerical and Services Union
v
Mornington Peninsula Shire Council
(C2017/4887)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER RYAN

SYDNEY, 14 SEPTEMBER 2017

Appeal against decision [[2017] FWC 4184] & Orders PR595296 in B2017/646, PR592298 in B2017/647 & PR595300 in B2017/648 of Commissioner Bissett at Melbourne on 14 August 2017.

Introduction

[1] Mornington Peninsula Shire Council (the Council) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) in its capacity as a bargaining representative have been bargaining for three proposed enterprise agreements, namely the proposed Aged and Disability enterprise agreement, the proposed General Staff enterprise agreement and the proposed Sport and Leisure enterprise agreement that will each cover the Council and certain of its employees. On 28 July 2017 ASU lodged three applications (B2017/646, B2017/647 and B2017/648) pursuant to s.437 of the Fair Work Act 2009 (FW Act) for protected action ballot orders in respect of its members employed by the Council who will be variously covered by the proposed agreements.

[2] By decision published on 14 August 2017 1, Commissioner Bissett determined to make orders.2 The central controversy before the Commissioner concerned the form of the ballot question in each matter, and specifically whether parts of the question sought authorisation from employees for action that was not industrial action within the meaning of s.19 of the FW Act.

[3] The impugned parts of the question in each matter describe the nature of the action for which authorisation was sought as follows:

1. Indefinite or periodic industrial action in the form of not complying with restrictions on making comment or distributing information to other Council employees, public, residents, ratepayers, Councillors or the media.

2. Interrupting work periodically, over an indefinite period or for specified periods in order to type or re-type, for the purpose of including in each email to be sent, the following statement: “I am taking protected industrial action because staff deserve job security. Email your objection to the CEO Carl Cowie, carl.cowie@mornpen.vic.gov.au”.

4. Indefinite or periodic industrial action in the form of performing work while wearing campaign material and/or badges.

5. Indefinite or periodic industrial action in the form of interrupting or stopping work in order to attach campaign material and/or badges on clothes worn at work.

6. Indefinite or periodic ban on the performance of work in clothes worn at work to which the aforementioned campaign material and/or badges is/are not attached.

8. Indefinite or periodic industrial action in the form of wearing casual clothes.

9. Indefinite or periodic ban on wearing uniform.

10. Indefinite or periodic ban on the wearing of name badges.

[4] The Commissioner determined not to include in the protected action ballot orders, the action described in 1 above, included the action described in 2, 4, 5, 8, 9 and 10. The Commissioner also included an altered form of 6 by deleting the words “the aforementioned” from the described action for which authorisation would be sought. This was made by consent, so that the final form of the action described in 6 was no longer the subject of objection. 3

[5] The Council and ASU have lodged notices of appeal against the decision and orders made by the Commissioner. Each appeal lodged requires permission. Both the applications for permission to appeal and arguments in support of the appeals proper were heard together on 8 September 2017.

The decision

[6] After noting the objections that the Council raised in respect of certain parts of the question to be posed in the respective ballots 4, the Commissioner summarised the competing contentions advanced by the Council and the ASU.5 Next, the Commissioner gave consideration to some of the principles relevant to the issue of the content or description of the action for which authorisation may properly be sought in a protected action ballot order as follows:

“[13] There are some general observations to be made prior to a consideration of the specific parts to the question to which objection is taken.

[14] I agree with the observations of Commissioner Hampton in Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology 11 as to the role of the Commission in determining a protected action ballot order application and his finding that “it is necessary to find that the questions concern action that at least has the potential to be industrial action if taken by all or some of the groups of employees to be balloted”.

[15] A forensic examination of whether each and every employee to be balloted, if they did participate in the industrial action however notified (and this cannot be known at the stage of determining an application), would be taking protected industrial action is not required. Given the breadth of employees to be balloted in this case, all that is necessary is for one employee to be able to take industrial action pursuant to that part of the question for that proposal to be legitimately included on the ballot. This does not mean that the action taken is not required to fall within the ambit of the definition of industrial action.

[16] I do not consider the decision in United Firefighters’ Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission and Another (Laing) supports a proposition that communication, per se, is industrial action. As French J said, the definition of industrial action:

…extends to the communication of a limitation or restriction. Communication picked up under pars (b) and (c) [of the definition of industrial action] must no doubt purport to be hortatory, if not authoritative and binding, upon the person or persons to whom it is directed.” [emphasis added]

[17] However, Ambulance Victoria v United Voice does contemplate that the stoppage of work in order to participate in some form of communication may well be industrial action. The industrial action in such a case however is not the communication but the stoppage during which the communication occurs.

[18] In Nillumbik, after considering the decision in Ambulance Victoria and United Firefighters’ Union of Australia v Easy (Easy) I said:

[30] The circumstances in the matter before me can be distinguished from those considered in Ambulance Victoria and UFU both set out above. Each of those cases involved action that, on the findings, bore no relationship to industrial action as defined by the Act. Neither had, as a concomitant part of the action, a stoppage of work.

[31] I am also satisfied that the circumstances of this case can be distinguished from that in All Hallow’s where it was found that the question incorporated two actions – a delay in responding to emails and an ‘out of office’ message on emails either of which could survive without the other. The second action (the out of office message), not being industrial action, could therefore not be included on the ballot. There was no specific action taken in conjunction with the ‘out of office’ reply that could bring that action within the orbit of industrial action.

[19] Nothing has been put to me as to why I should depart from such reasoning in circumstances where a stoppage of work is proposed and there is some indication as to what is to occur during that stoppage.” 6 [Endnotes omitted]

[7] Thereafter, the Commissioner turned to consider the impugned parts of the question, to which earlier reference has been made. First, the Commissioner gave consideration to the objection raised in respect of the action in 1, the terms of which we have earlier set out. The Commissioner determined to exclude the action in 1 from the question and reasoned as follows:

“[20] Part 1 of the question to be put to the voters goes to employees undertaking communications not normally a part of their duties.

[21] The ASU submits that there is appositive obligation placed on employees to perform work in conformity with the policies of MPS. One such obligation is to limit who may comment on MPS matters publicly. To work otherwise, it submits, is a ban or limitation on how work is performed.

[22] The MPS submits that the proposed action does not fall within the definition of industrial action in s.19(1)(a) of the FW Act. It submits that, in taking the action it would be “beyond and outside the range of the relevant employees’ normal duties rather than placing a restriction on the performance of those duties” or performing work “in a manner different from that in which it is customarily performed…”

[23] In the decision in Launch Housing I said, in respect to a question to be put to ballot in terms not dissimilar to part 1:

[14] I am therefore satisfied that the work of employees to be balloted does not include commenting, making comment or distributing information to the public. Any action with respect to doing such things cannot, therefore, be considered industrial action within the meaning of s.19 of the Act. It shall be removed from that part of the question.

[24] It is clearly the case that non-compliance with a work requirement may be a ban or limitation on how work is usually performed (for example a ban on the issuing of parking tickets or collecting waste) but this proposal is of a different character. The action arising from part 1 of the question would require employees to do work that they would not normally be engaged in doing and are not required to do. The proposal does not go to those employees who are engaged to make comment or distribute information such that they should not do it or perform the task differently.

[25] The communication proposed by this action is not hortatory in any sense such that the decision in Laing might apply. That some communications may be industrial action does not mean that all communications, for whatever purpose, will fall within the definition. Further, I am not satisfied that the action falls within the ambit of industrial action as contemplated in Ambulance Victoria v United Voice.

[26] For these reasons I am not satisfied that the action proposed by part 1 could give rise to industrial action within the meaning of the FW Act.

[27] Part 1 of the question will therefore be deleted.” 7 [Endnotes omitted]

[8] Next, the Commissioner considered the objection raised in respect of the action in 2 and 5, the terms of which are also earlier set out. The Commissioner determined to include the action in 2 and 5 in the question and reasoned:

“[28] The action arising from parts 2 and 5 of the question involve the stoppage of work for a period of time within which certain things must be done.

[29] The ASU submits that it is industrial action as the specific action of adding words to an email is predicated on the stopping of work.

[30] MPS submits that it is necessary to sever the thing that will be done during the period of industrial action from the industrial action itself. Further, it submits that the ASU has “infected” the question with actions which would not, by themselves, be industrial action as defined in the FW Act.

[31] MPS says that the attempt by the ASU to cloak actions unrelated to the performance of work was contemplated in All Hallow’s where the Full Bench determined that “both actions must constitute industrial action in order to be capable of being supported” and in any event is still not industrial action because the action does not result in the delay in the performance of work.

[32] I do not agree with the submissions of MPS. In All Hallow’s the Full Bench found that there were two actions occurring. The first was a delay in the performance of work which was found to be industrial action within the definition in the FW Act. The second, the inclusion of an “out of office” message which was found not to be industrial action. It was to these two distinct parts of the question that the Full Bench directed its observation. In this case there is only one action – the stoppage of work during which certain things will be done.

[33] In the minority decision in Australian Nursing Federation v Mornington Peninsular Shire Council (Mornington) Senior Deputy President Kaufman observed that “Had the proposed conduct been along the lines of say, a stoppage of work for 5 minutes per shift or per hour in order that information might be distributed, I would have come to a different conclusion” that the proposed action was not industrial action. Further, in Ambulance Victoria v Untied Voice Tracey J, in finding that communications in that case was not industrial action said “Like Kaufman SDP, I accept that the position might be different were the proposed conduct to include express provision for a stoppage of work, even for a short period…”

[34] To this extent MPS misunderstands the basis on which the decision was reached in Nillumbik and in Launch Housing.

[35] As I observed in Nillimbik:

[32] In this case the actions are put as co-dependent – that is, unless the second action is taken any stoppage for five minutes will not be industrial action authorised by the ballot and without the stoppage the material cannot be distributed…

[34] Whilst it is true that the communication proposed in the question by itself will not be industrial action that is not the industrial action proposed. As I have said above the two actions are co-dependent. There is only one action that will be taken and that is a stoppage of work during which material will be provided/explained to clients.

[36] To the extent that the ASU chose to be so restrictive in the proposed action they wish to put to members, this is their choice. It will be to them to manage any action that may be taken arising from the ballot such that it remains protected by the ballot itself.

[37] I am satisfied that parts 2 and 5 of the question can remain.” 8 [Endnotes omitted]

[9] Lastly, the Commissioner considered the objection raised in respect of the action in 4, 8, 9 and 10, the terms of which are also earlier set out. The Commissioner determined to include the action in 4, 8, 9, and 10, in the question and reasoned:

“[38] Parts 4, 8, 9 and 10 of the question go to the wearing of campaign clothing and/or badges or a refusal to wear certain clothing as required by MPS.

[39] The ASU submits that, if it is a requirement that an employee wear certain clothing at work, then any departure from the wearing of that clothing is “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” such that the action comes within the definition of industrial action.

[40] MPS submits that it does not fall within the definition of industrial action for the reasons outlined in part 1 of the question above. That is, it says that what is proposed is the reverse of a restriction on the performance of work as it refers to non-compliance with restriction imposed by MPS.

[41] In Mornington, the majority (Senior Deputy President Watson and Commissioner Gooley) found that:

[30] Section 19(1)(b) of the Act is therefore directed to both the work the employees do and the circumstances in which they offer to do it.

[31] If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work.

[32] Accordingly, we find that the wearing of campaign clothing whilst at work could constitute 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 (s.19(1)(b)).

[42] In Easy Justice Ross distinguished Mornington from the matter he was considering in that, in Mornington unlike the matter before him, the “wearing of union campaign clothing was contrary to the employer’s clothing policy.” He further found that where the employer has a clothing policy:

157. If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work. But that is not this case.

[43] To the extent that there are employees of MPS who are required to wear certain clothing I am satisfied that the wearing of campaign clothing or badges or the wearing of clothing other than that required by MPS may constitute industrial action. To not wear such clothing or to wear it in some alternative form is a limitation on the performance or on the acceptance of or offering for work by an employee.

[44] I am therefore satisfied that parts 4, 8, 9 and 10 of the question can remain. 9 [Endnotes omitted]

Consideration

Council’s appeal

[10] As to the action described in 2, the Council advances the following appeal grounds:

1. The Commissioner erred in law in construing Question 2 as involving one action, rather than two distinct actions.

2. The Commissioner erred in law by finding that the mere communication that ‘industrial action’ was occurring is itself capable of constituting ‘industrial action’, provided that the proposed action had, as a concomitant part, a ban on, or stoppage of, the performance of work during which such communication was to occur.

3. The Commissioner erred in law in failing to construe Question 2 as involving two distinct actions the second of which:

(a) constituted the mere communication that industrial action was occurring; and therefore -

(b) was not capable of constituting ‘industrial action’ itself;

4. The Commissioner erred in law in failing to find that the second action, being the mere communication of the first action, did not involve any additional restriction, limitation or delay over and above the first action, and that it was therefore incapable of constituting ‘industrial action’ itself;

5. The Commissioner erred in law by finding that the proposed action would, if carried out, involve a ban on, or stoppage of, the performance of work; and

6. The Commissioner erred in law by making an implicit finding that Question 2 was stated with sufficient clarity to permit the question to be put to employees in a protected action ballot. The Commissioner should have found that the question was ambiguous and not stated with sufficient particularity to inform employees as to the putative ‘industrial action’ proposed.

[11] As to the action described in 5, the following appeal grounds are advanced:

7. The Commissioner erred in law in construing Question 5 as involving one action, rather than two distinct actions;

8. The Commissioner erred in law by finding that attaching campaign material and/or badges to clothes at work is capable of constituting ‘industrial action’, provided that the proposed action had, as a concomitant part, a ban on, or stoppage of, the performance of work during which such attaching was to occur;

9. The Commissioner erred in law in failing to construe Question 5 as involving two distinct actions, the second of which, being attaching campaign material and/or badges to clothes, was not capable of constituting ‘industrial action’, because such action does not impinge directly on the manner in which work is performed;

10. The Commissioner erred in law in failing to find that the second action, being the attaching of campaign material and/or badges to clothing, did not involve any additional restriction, limitation or delay over and above the first action, and was, therefore, incapable of constituting ‘industrial action’ itself;

11. The Commissioner erred in law by finding that the proposed action in Question 5 would, if carried out, involve a ban on, or stoppage of, the performance of work; and

12. The Commissioner erred in law by making an implicit finding that Question 5 was stated with sufficient clarity to permit the question to be put to employees in a protected action ballot. The Commissioner should have found that the question was ambiguous and not stated with sufficient particularity to inform employees as to the putative ‘industrial action’ proposed.

[12] In support of grounds 1 and 7, the Council contends that the action in both 2 and 5 are framed as periodic or indefinite interruptions or stoppages to work in order to take the described action and that central to the Commissioner's decision to allow 2 and 5 to go to ballot was her finding that “there is only one action - the stoppage of work during which certain things will be done” 10. It contends that in making that finding, the Commissioner fell into error by wrongly distinguishing the proposed industrial action in the instant case from that considered by the Full Bench in Independent Education Union of Australia v All Hallows' School Limited T/A All Hallows' School and others (All Hallows’ School).11 12

[13] The Council contends, in respect of grounds 4 and 10, that the analysis in All Hallows' School is directly applicable to 2 in this case because in both All Hallows' School and here, there is a stoppage of work followed by a subsequent communication to the original sender of the email that industrial action is occurring. It contends that the relevant work for the purposes of 5 is not specified in the Commissioner’s decision, however there is a proposed stoppage of work, during which the subsequent action of attaching campaign material and/or badges to clothes is to occur. Therefore, the Council contends there are, in truth, two actions, not one. The Council contends that to find, as the Commissioner did, that as the stoppage of work is taken to perform certain tasks (indicated by the words "in order to"), there is only "one action" is a highly artificial and strained interpretation of the action in 2. The Council contends that once it is accepted that there are two distinct proposed actions within 2 and 5, it is necessary to determine whether the second action independently fits within the statutory definition of industrial action. 13

[14] As to the “second action” said to be contained in each of 2 and 5, the Council points to the analysis in All Hallows' School 14 and submits that once the stoppage of work is put in place, the typing of the communication does not involve any additional restriction, limitation or delay in the performance of work. Nor does the communication, per se, otherwise meet the definition of industrial action in s.19(a) or (b) of the FW Act. It submits that attaching campaign materials and/or badges to clothing does not result in an additional delay, restriction or limitation on the performance of work, or on the offering for work, over and above the first action and says that wearing campaign material has no relation to the work of the employees at all.15

[15] As to Grounds 2 and 3, the Council contends that the Commissioner erred in finding that mere communication is industrial action when a ban or stoppage is imposed in order to make the communication. It submits that the Commissioner’s construction leads to an impossibly wide definition of industrial action in which action that otherwise does not fit within the definition of industrial action could be taken so long as a ban was taken for the purpose of engaging in that action. It contends that one may infer that Parliament did not intend such an outcome in circumstances where the definition of the concept is not an inclusive definition, and has been historically held to be a limited, as opposed to expansive, definition. The Council submits that in the present case, on the plain reading of 2, it is the communication that is the action that is sought to be protected. The proposed ban is to be put in place purely in the service of the making of the communication. It is merely a conduit to allow the communication. It contends that if necessary, the definition of industrial action should be read down to prevent such a widening of its scope and says that the Commissioner ought to have followed the Full Bench in All Hallows' School by finding that the second action was mere communication and that "the mere communication of industrial action has been held not to be industrial action" with the consequence in the instant case that it was not industrial action. 16

[16] As to grounds 5 and 11, the Council submits in the alternative that the Commissioner erred by wrongly construing the action in 2 and 5 as involving a ban on, or stoppage of, work. It contends that the proposed action must actually result in a ban. It is not enough to simply state that a ban is put in place. In the instant case, it cannot be assumed or inferred that the typing of the email communication or the donning of campaign materials would impinge on the duties of the relevant employees. It contends that the fact that the relevant description of action states that work will be interrupted "periodically" or ''for specified periods" does not amount to a stoppage of work if there is no impingement on the duties of the relevant employees or the proposed action does not, in fact, result in any prohibition on work. Consequently, it was submitted, the action in 2 and 5 do not fall within the definition of industrial action in s. 19(a) or (b) of the FW Act. 17

[17] As to grounds 6 and 12, the Council contends that action in 2 and 5 as described is ambiguous and ought to have been rejected by the Commissioner on this basis.

[18] For its part, the ASU contends that in large part the Council’s contentions concerning 2 and 5 is to the effect that the Commissioner erred in her construction of the question with various consequences thereby flowing. It contends that existence of an alternative construction, as contended by the Council, does not preclude a construction, which might lead to the matters the subject of questions under consideration to be capable of being industrial action. The ASU says whether the impugned action is capable of being industrial action is that which the Commissioner was obliged to determine but the Commissioner was not obliged to determine that the impugned action could not, under any circumstances, be capable of constituting industrial action. In other words, the Commissioner was required to consider whether or not the action described, had the potential to be industrial action and that a stoppage of work can be conditioned by the doing of a particular act. 18

[19] The ASU contends that the Council’s grounds of appeal numbered 1, 2, 3, 4, 7 and 10 depend for their efficacy, upon the characterisation of the action described in 2 and 5 involving two distinct actions, at least one of which is not industrial action. It submits, whether the described action involves one or more distinct actions is a matter of construction of the question and says that conclusions about action in earlier cases, in different form, are of limited assistance in construing the action at issue in this case. 19

[20] The ASU contends, as a matter of grammatical construction, the action described in 2 and 5 is different to the action, the subject of consideration in All Hallows' School in a significant respect. Specifically, the action described in 2 and 5 each make clear that the stoppage or interruption in work is conditioned on the doing of particular things. It is not the doing of particular things, which is the subject of the action to be taken or the action in which the employees will engage; rather, it is the doing of those things, which condition the interruption, or stoppage of work. This is significantly different from the action considered in All Hallows’ School because the communication in that case was not conditioned on a delay in responding to emails. 20

[21] So far as the Council contends that the Commissioner determined at [17] of her decision, that mere communication is industrial action in the circumstances when a ban or stoppage is imposed to make the communication, the ASU submits that the Council misunderstand that paragraph and misunderstand the action for which authorisation is sought as described in 2. It says that the action for which authorisation is sought in 2 is not a compound question and authorisation is not sought for the continued doing of the activity to be undertaken during the stoppage of or interruption to, the work. The “stoppage of work” for a particular purpose may well be industrial action and the Commissioner correctly noted that it was the stoppage rather than the communication that was the subject of that finding. 21

[22] As to the Council’s ground of appeal numbered 8 and 9, the ASU contends that the action described in 2 and 5 is the interruption of work in 2 and 5, the interruption or stopping of work. Such conscious interruption or stoppage of work is not to be likened to incidental breaks as discussed by Tracey J in Ambulance Victoria v Untied Voice 22. The ASU contends that interrupting work is performing work in a manner different, at the least and a stoppage of work is clearly within the definition of industrial action.23

[23] We consider that the action described in each of 2 and 5 is properly described as industrial action within the meaning of s.19 of the FW Act and the action so described was properly included in each of the protected action ballot orders made by the Commissioner. Our reasons for this conclusion may be shortly stated.

[24] The question whether action described in an application for a protected action ballot order is capable of being properly described as industrial action within the meaning of s.19 of the FW Act is answered primarily by construing the words used in any proposed question, ascertaining the nature of the action described by the proposed question and determining whether that action (having regard to the work performed by employees who are to be balloted) is capable of falling within the exhaustive statutory definition of industrial action. Section 19 of the FW Act 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;

(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).”

[25] The action described in 2 is:

“Interrupting work periodically, over an indefinite period or for specified periods in order to type or re-type, for the purpose of including in each email to be sent, the following statement: “I am taking protected industrial action because staff deserve job security. Email your objection to the CEO Carl Cowie, carl.cowie@mornpen.vic.gov.au”.”

[26] While the action described in 5 is:

“Indefinite or periodic industrial action in the form of interrupting or stopping work in order to attach campaign material and/or badges on clothes worn at work.”

[27] We consider that the action for which authorisation is sought in 2 is the action of “interrupting work periodically, over an indefinite period or for specified periods”. That which follows merely describes conduct in which an employee will engage whilst interrupting his or her work. Viewed in this way, the action is quintessentially industrial action as defined. The activity in which an employee will engage during the interruption of work sets the period or duration of the industrial action, being the interruption to the work. That is, the interruption will occur for the period of time that it takes an employee to include the statement in a relevant email or emails that forms part of the work the employee normally performs before sending it to them. The activity also has the effect of delineating the nature of the interruption to work that will be authorised (for the purpose of typing or retyping the statement) from an interruption to work for another purpose that will not be authorised.

[28] However, even if the conduct in which an employee will engage during the period that work is to be interrupted pursuant to 2, can be said to form part of the action for which authorisation through the ballot is sought, we consider that the action as described as a whole in 2 is capable of being industrial action as defined in s.19 of the FW Act. This is because the action of typing or retyping in each email to be sent, the identified statement, and then sending the email, appears to us to be “the adoption of a practice in relation to work (sending emails) by an employee”, which when combined with the interruption to the work in order to type or retype the relevant message, has the result that there is “a delay in the performance of the work”.

[29] As to the action described in 5, we also consider the action for which authorisation is sought is the action of “interrupting or stopping work”. The described activity which is to follow during the interruption of stopping of work, namely, attaching campaign material and/or badges on clothes worn at work, merely describes action in which the employees will engage whilst interrupting their work. Apart from describing that which the employees will be doing whilst interrupting or stopping work, the activity described serves to set the period or duration of the industrial action in which the employees proposed to engage. That is, the interrupting of or stopping work will occur for the period of time that it takes an employee to affix the material described to the employees clothes worn at work. As earlier noted, the described activity also has a delineating effect on the interrupting or stopping work that will be authorised and that which will not.

[30] We therefore reject the Council’s submissions as to the action in 2 and 5 of the question. It follows from our analysis above that the Commissioner was not in error by including in the question the subject of each order, the action described in 2 and 5 of the applications for a protected action ballot order.

[31] We turn next to consider the grounds relating to the action described in 4, 6 and 8 – 10 of the question to be included in the ballot. Appeal ground 14, which concerns the action described in 6 of the question, was not pursued at the hearing of the appeal. 24 As is apparent from our earlier discussion, the described action which ultimately found its way into the protected action ballot orders made by the Commissioner arising from 6 (appearing as 5 in each order) was the product of consent during the hearing before the Commissioner and in its amended form was not opposed.

[32] As to the action described in 4, 8 – 10 of the question, the Council advances respectively, the following appeal grounds:

13. The Commissioner erred in law in finding that the proposed action of “performing work while wearing campaign clothing or badges” is a limitation on the performance of work, or on the offering or acceptance of the work by an employee, and that it was therefore capable of constituting ‘industrial action’ in circumstances where the ban does not impinge directly on the manner in which work is performed. The Commissioner should have held that such action was not capable of constituting ‘industrial action’.

15. The Commissioner erred in law in finding that the proposed action of “an indefinite or periodic industrial action in the form of wearing casual clothes” is a limitation on the performance of work, or on the offering or acceptance of the work by an employee, and that it was therefore capable of constituting ‘industrial action’ in circumstances where the wearing of casual clothes does not impinge directly on the manner in which work is performed. The Commissioner should have held that such action was not capable of constituting ‘industrial action’.

16. The Commissioner erred in law in finding that the proposed action of “an indefinite or periodic ban on wearing uniform” is a limitation on the performance of work, or on the offering or acceptance of the work by an employee, and that it was therefore capable of constituting ‘industrial action’ in circumstances where the refusal to wear uniform does not impinge directly on the manner in which work is performed. The Commissioner should have held that such action was not capable of constituting ‘industrial action’; and

17. The Commissioner erred in law in finding that the proposed action of “an indefinite or periodic ban on the wearing of name badges” is a limitation on the performance of work, or on the offering or acceptance of the work by an employee, and that it was therefore capable of constituting ‘industrial action’ in circumstances where the refusal to wear name badges does not impinge directly on the manner in which work is performed. The Commissioner should have held that such action was not capable of constituting ‘industrial action’.

[33] In respect of these grounds the Council contends that the Commissioner erred in finding that the wearing of casual clothes or campaign clothing, and banning uniforms and name badges was capable of constituting industrial action and ought to have found that the proposed action in question 5 did not directly impinge on the manner in which work is performed, and, therefore, was incapable of amounting to industrial action. It submits that in coming to her conclusion, the Commissioner relied on the majority decision in Australian Nursing Federation v Mornington Peninsula Shire Council 25 and the obiter comments of Justice Ross’ comments in United Firefighters Union of Australia v Easy.26 In ANF v Mornington the majority concluded that if an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work.27

[34] The Council contends that the decision in ANF v Mornington is plainly wrong and ought not be followed. It says that proposed action that involves a refusal to wear uniforms or name badges, or is based on an insistence on wearing casual clothes or clothes with campaign material attached, at most amount to a refusal to comply with contractual terms, rules and policies of an employer. It points to the judgement of Tracey J in Ambulance Victoria in which his Honour noted that the constructions placed on paragraphs 19(l)(a) and (b) by the Full Bench in the ANF v Mornington are "too broadly stated.” 28 It says that the correct approach is that action that is contrary to contractual terms , policies and rules of the employer which binds the employees:

“… does not, for that reason, amount to the performance of duty in a manner that is different from the norm. Rules, policies and contractual provisions which proscribe conduct of certain kinds by employees regulate the conduct of those employees in the course of their employment. They do not impinge directly on the manner in which work is performed. A breach of such a proscription cannot, in my opinion, be regarded as a departure from the customary manner of performance of an employee's work.” 29

[35] ASU contends that the Commissioner found in respect of campaign clothing or the erection or placing of campaign paraphernalia, conformably with the decision in ANF v Mornington and judgement in Easy that, at the least, to the extent that an employee was prepared only to perform work if wearing campaign clothing or other particular type of clothing then they would be placing a limitation or restriction on the acceptance or offering for work. 30 It was argued (or perhaps suggested) before us, that the action identified by 8, 9 and 10 was in truth a refusal to perform or a ban on the performance of work other than while wearing casual clothes, while wearing a uniform or while wearing a name tag, as the case required.31

[36] ASU contends further that, the Commissioner correctly concluded that wearing of such clothing would place a limitation or restriction on the performance of work. The basis for this is explained in the extract set out in the decision of ANF v Mornington at [20]-[32] and in Easy at [152] and [157]. 32 It further contends that the ASU accepted that the Council has a clothing policy, which clothing policy, must be taken to include or contemplate or be informed by the type of communication that the Council wishes to effect through the interaction of its employees with the Council’s customers, residents, ratepayers or the public in general. It says that to that extent the wearing of campaign clothing must involve a limitation or restriction on the performance of work in that it makes a different communication from that which the employer, by its uniform policy, wants in the interaction between its employees and the public.33

[37] Lastly, ASU contends that in any event, the Commissioner was clearly correct in that, to the extent that persons would only work whilst wearing campaign clothing that that of itself must constitute a limitation or restriction on the acceptance or offering for work. 34

[38] We do not consider that any of the action described in 4 or 8 describes the nature of any industrial action. In our view is not sufficient to suggest that the corollary of performing work while wearing campaign material and badges, or while wearing casual clothes, or while not wearing a uniform or a name badge, is that there is a refusal to perform work in circumstances other than those described. We consider that the action for which approval is sought through a protected action ballot must itself describe the nature of the industrial action for which approval is sought in the question. That there will be a refusal to perform work other than in circumstances as described must in our view be expressed and not merely inferred. Indeed, the action described in 6 in the form amended, to which no objection is taken does so. It describes the action as a ban on the performance of work in clothes to which campaign materials is not attached.

[39] The action described in 4 is an “indefinite or periodic industrial action in the form of performing work while wearing campaign material and/or badges” (our emphasis). The action as described results in the performance of work and does not fall within any of the defined action found in the enumerated subparagraphs of s.19 of the FW Act. The action described in 8 of the question suffers from the same flaw in that it describes the industrial action to be in the form of wearing casual clothes. Neither of the action in 4 or 8 of the question describes any refusal to perform work or a delay in the performance of work, or the adoption of a practice in relation to work which will have that result, or a ban or limitation or restriction on the performance of work.

[40] To the extent that the Commissioner concluded to the contrary and included in the question the action described in 4 and 8, she was in error.

[41] The action described in 9 and 10 of the question is couched in terms of an “indefinite or periodic ban on wearing” uniform or “on the wearing of” name badges. Much of the Council’s submission in respect of the action described in 9 and 10 was based upon the premise that the reasoning of Tracey J in Ambulance Victoria is to be preferred to that of the majority in ANF v Mornington. However, to prefer the reasoning in Ambulance Victoria does not result, as the Council’s submissions suggest, that the majority decision in ANF v Mornington was plainly wrong.

[42] First, it must be understood that which was required to be decided in each case. The decision in ANF v Mornington concerned an appeal from the making of a protected action ballot order containing a question which was said not to describe action that was industrial action. An application by a bargaining representative for a protected action ballot order must, inter-alia, specify “the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action” (our emphasis). 35

[43] The central question that required resolution in Ambulance Victoria was whether one of the forms of industrial action about which notice was given by the bargaining representative pursuant to s.414 of the FW Act constituted industrial action of a kind that was protected by s.515. 36 Section 414 of the FW Act provides that before a person engages in an employee claim action for a proposed agreement, a bargaining representative of an employee who will be covered by the agreement “must give written notice of the action to the employer of the employee” (our emphasis).

[44] It should immediately be apparent that the specificity with which “the action” is to be described in a notice might not be the same as a requirement that a question in a ballot include “the nature of” the proposed industrial action. Both concern describing action that is industrial action as defined in s.19 of the FW Act. However, the specificity with which the action needs to be described seems to us to be different. It seems to us that the structure of the differing legislative requirements, contemplates that at the time that a member of the Commission comes to consider whether to make a protected action ballot order, the context and manner in which employees might subsequently choose to take proposed industrial action, the nature of which is described in the question, may not be clear. However, different considerations will apply once a ballot has been conducted, the nature of the industrial action has been approved, and a bargaining representative gives notice of the action that will be taken by employees. When the notice is given, greater clarity about the context and manner in which employees will take industrial action, will doubtless be apparent and so greater clarity in describing the action to be taken will be required.

[45] Justice Tracey recognised this difficulty in Ambulance Victoria when his Honour observed:

“Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. 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. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.” 37

[46] True it is that in both instances the question will be whether the action described is industrial action as defined. However, absent material about context and manner of taking the action described in a protected action ballot application question during the determinative phase of considering whether to make a protected action ballot order, it should be unsurprising that action that is capable of being industrial action will be permitted to be included in questions directed to employees who are to be balloted. In this regard, we respectfully agree with the reasoning of Commissioner Hampton in Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology. 38

[47] In any event Ambulance Victoria was concerned with action in the form of a dissemination of data by employees without first seeking approval. Justice Tracey’s critique of the majority decision in ANF v Mornington was concerned with that aspect of the decision. So much is clear from the following:

17. They held (at [23]) that the distribution of information to the media about the reason for industrial action could constitute “industrial action” “if employees ceased or interrupted their work in order to communicate the reasons for industrial action to clients or the media. In that circumstance, the action would clearly involve the performance of work by an employee in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or a delay in, the performance of the work (s. 19(1)(a)) and a ban, limitation or restriction on the performance of work by an employee (s. 19(1)(b)).”

…

19. It is, however, to be borne in mind that the term “industrial action” bears the same meaning in s 437 as it does in ss 409 and 415. That is the meaning prescribed by s 19(1). In some respects, in my respectful opinion, the constructions, placed on paragraphs 19(1)(a) and (b), by the Vice President and the Full Bench majority in the ANF case, are too broadly stated.

20. In the first place, the “work” referred to in the definition sections is not “work” generally. It is the “work” performed by an employee. The relevant employee is an employee who is taking the relevant action. So much was held by Wilcox and Cooper JJ (with whom Burchett J relevantly agreed) in David’s Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 165 ALR 550. In dealing with the equivalent definition of “industrial action” under s 4 of the Workplace Relations Act 1996 (Cth), which, notably, omitted the words “by an employee” after the words “performance of work” in the relevant paragraphs, expressed the view (at 570) that:

“… consistently with the tentative view of the Full Court in [CFMEU v Giudice (1998) 159 ALR 1], we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuades us it is likely parliament intended to confine the paragraph in this way.”

21. In CFMEU v Giudice the Full Court’s tentative view was “that para (c) [the equivalent of s 19(1)(b)] in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it.”

22. The addition of the words “by an employee” in the extant definition confirms, in my view, that the definition is so confined.

23. It is, therefore, necessary to identify work normally performed by the relevant employees and the manner in which it is customarily performed. The duties of the managers include the collection and analysis of information relating to response times of ambulances in their areas. It is not part of their duties to provide such information to persons outside Ambulance Victoria, including reporters and others engaged by media outlets. It cannot, in my opinion, be said that making response time data available to the media, in breach of their contracts of employment, involves the performance of their normal work in a manner different from that in which it is customarily performed. It may be different if their work involved the provision of material to the media through certain approved channels and the employees chose to distribute the information by other means. That is not this case. The fact that the proposed action is contrary to contractual terms which are binding on the employees does not, for that reason, amount to the performance of duty in a manner different from the norm. Rules, policies and contractual provisions which proscribe conduct of certain kinds by employees regulate the conduct of those employees in the course of their employment. They do not impinge directly on the manner in which work is performed. A breach of such a proscription cannot, in my opinion, be regarded as a departure from the customary manner of performance of an employee’s work. Were it otherwise, contraventions by employees of policies which prohibit sexual harassment or discrimination of various kinds could be regarded as departures from the customary manner of performance of work and thereby amount to industrial action.

24. In any event, the proposed action in this case cannot, in any relevant sense, be said to result in a restriction or limitation on or a delay in the performance of the employee’s normal duties. What is proposed is the taking of action above and beyond and outside the range of their normal work rather than the placing of a restriction on the performance of those duties. It should not be assumed or inferred that the proposed action will interfere in any way with the performance of the managers’ normal duties. In the course of any shift brief breaks can be and are taken for purposes such as informal conversations with colleagues, toileting and meals. Such breaks do not impinge on the performance of the employee’s normal duties. Communication could occur during such times without interference with normal work. It might also occur in the few seconds involved in the dispatch of an e-mail. Like Kaufman SDP, I accept that the position might be different were the proposed conduct to include express provision for a stoppage of work, even for a short period, in order for the managers to distribute data to the media. No such action has been proposed by the AEA. Section 19(1)(a) is, therefore, not engaged.

25. For the same reasons there is no relevant limitation or restriction for the purposes of s 19(1)(b). Furthermore, there is no “ban” for the purpose of that paragraph. As Hollingworth J held in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 105 at [34] the word “contemplates a prohibition on work, rather than a prescription to perform work in a certain way or to achieve a certain result.” Action 12 does not include any prohibition on work. 39

[48] It will be apparent from our consideration of the ASU’s appeal below, that we agree.

We also respectfully agree with the construction of s.19(1)(a) and (b) of the FW Act by Ross J in Easy which was as follows:

153. The first element of s 19(1)(a) is that the performance of work by the employee must be in a manner different from that in which it is customarily performed. The second element, which is an alternative to the first, is that there must be the adoption of a practice in relation to the work. In both instances, the action must result in a restriction or limitation on, or a delay in, the performance of the work.

154. In the context of this case, I do not consider that the wearing of campaign clothing falls within either limb of the definition of industrial action in s 19(1)(a) of the Act. Wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed. There is no evidence that MFB non-operational staff were required to wear a particular uniform, nor is there any evidence of a policy proscribing the wearing of union t-shirts. There may conceivably be situations where particular work can only be performed whilst wearing certain clothing and the refusal to wear that clothing could affect the manner in which the work is performed and result in a restriction or limitation on, or a delay in, the performance of the work. But this is not such a case. Thus Ms Antonakis’ wearing of the UFU t-shirt did not fall within s 19(1)(a) of the definition of ‘industrial action’.

155. Under s 19(1)(b) there must be a ban, limitation or restriction on the performance of work by the employee engaging in the conduct or on the acceptance of or offering of work by the employee.

156. The meaning of the expression ‘a ban, limitation or restriction on the performance of work ... or on acceptance of or offering for work’, was considered by the Full Court in Davids Distribution Pty Ltd v National Union of Workers,[123] albeit in a different statutory context (i.e. the definition of ‘industrial action’ in s 4(1)(c) of the Workplace Relations Act 1996 (Cth)). In their judgment, with which Burchett J relevantly agreed, Wilcox and Cooper JJ adopted the tentative view expressed by the Full Court in Construction, Forestry, Mining and Energy Union and Ors v Giudice and Ors[124] and said:

‘... we think the paragraph [s.4(1)(c)] ought to be read as applying only to limitations on the work of those imposing the ban.’[125]

[49] Turning then to the action described in 9 and 10 of the question, we consider that neither describes action that is capable of being a, ban, limitation or restriction on the performance of work by an employee”. Similarly, a ban on the wearing of a uniform or a name badge, in and of itself does not amount to a “ban, limitation or restriction on . . . the acceptance of or offering for work by an employee.” Though this might be the consequence in some circumstances, the ban on the wearing of the particular items of clothing in and of itself does not describe “the nature of the proposed industrial action”. The industrial action that might follow, namely a ban, limitation or restriction on the acceptance of or offering for work in uniform or while wearing a name badge, must in our view be described in the action for which authorisation through the ballot is sought. It should not be left to inference.

[50] Thus, as Ross J reasoned in Easy, if an employee is only prepared to perform work if they are wearing a particular item of clothing then the employee is placing a limitation or restriction on the performance of work on the acceptance or offering for work. But that action must form part of the description of the nature of the proposed industrial action contained in the question to be put to employees in the ballot. The action described in 9 and 10 of the question does not do so. To the extent that the Commissioner concluded at [43] of her decision to the contrary, she was in our opinion in error. To the extent that the majority in ANF v Mornington could be said to have concluded that wearing of campaign clothing will at work be a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for the work by the employee for the purposes of s.19(1)(b), without more, then we respectfully disagree.

[51] However, it does not follow that the action described in 9 and 10 of the question is not capable of being industrial action as defined in s.19(1)(a). It seems to have been uncontroversial during the proceedings before the Commissioner that there are some employees of the Council who would be asked to approve the action in 9 and 10 of the question who are required to wear a uniform or a name badge while performing work . 41 As such the action in 9 and 10 of the question might well describe the nature of the proposed industrial action because it might be or involve “the adoption of a practice in relation to work by an employee” which could, depending on context and the manner in which it occurs, result in “a delay in the performance of work”. However, on our review of the material below, this construction of the action in 9 and 10 was not argued before the Commissioner. Nor did either party before us suggest this construction. That question is therefore best left for another time. In the circumstances, we accept that on the Commissioner’s reasoning at [43] of her decision, she erred in including the action 9 and 10 in the question included in each protected action ballot order.

ASU’s appeal

[52] We now turn to ASU’s appeal. In this appeal it concerns the decision by the Commissioner to exclude from the question the action described in 1 as follows:

“Indefinite or periodic industrial action in the form of not complying with restrictions on making comment or distributing information to other Council employees, public, residents, ratepayers, Councillors or the media.”

[53] The ground of appeal advanced by ASU is that:

“The Commissioner erred in fact and law in failing to find that Part 1 of the question to be put to the employees could give rise to industrial action within the meaning of the Fair Work Act 2009 (Cth), and consequently deleting Part 1 from the Protected Action Ballot Order.”

[54] In support of its ground of appeal, ASU submits that the reason the Commissioner declined to include the action described in 1 from the question is that, in part, and relevantly, the effect of the question “would require employees to do work that they would not normally be engaged in doing and are not required to do. The proposal does not go to those employees who are engaged to make comment or distribute information such that they should not do it or perform the task different”. It contends that this conclusion is in part informed by the findings made by the Commissioner at [20] that the action described in 1 of the question “goes to employees undertaking communications not normally a part of their duties.” 42

[55] ASU contends that the action described in 1 of the question is not so limited and that it is capable of applying to those employees of the Council whose tasks or responsibilities include the communication of information to other Council employees, the public, residents, ratepayers or Councillors. Therefore, to the extent that the action described in 1 of the question is capable of applying to that class of employees, the proposed action is capable of being industrial action. The question for the Commission to determine is whether or not the action is capable of being industrial action and not, whether in all circumstances, it would be industrial action. 43

[56] ASU also contends that in any event, to the extent that those employees whose tasks and responsibilities do not include communication, making comment or distributing information to the relevant people, the action proposed is nonetheless a restriction on the acceptance or offering for work in that there is such an acceptance or offering only on the basis that the restrictions which otherwise apply would not apply.

[57] The Council submits that to propose non-compliance with wholesale restrictions on "making comment" or "distributing information" is to propose that employees positively engage in action that does not - as evidenced by the very existence of that restriction - form part of their normal "work”. 44 It maintains that there was no evidence before the Commission on which a finding could have been made that there were any employees to be balloted whose work encompassed the provision of "comment" or "information" to various groups through certain approved channels, and the relevant action involved a departure from approved processes and channels.45

[58] The Council contends that the Commissioner correctly applied Ambulance Victoria 46as the action described in 1 of the question is not formulated as a restriction on offering for or accepting work only if a particular policy of the employer's does not apply, and the balloted employees would not understand it as having this meaning. It contends that the acceptance of work, or offering for work, on the proviso that the employee is not bound by a policy restricting comment or provision of information to others is not, a "restriction" within the meaning of s.19 of the FW Act. At most, it signals an intention or willingness to disobey lawful and reasonable directions in respect of the employee's employment more generally, but does not speak to a restriction on the work that the employee will offer for or accept.47

[59] We do not consider that the Commissioner was in error in excluding from the question to be asked of employees participating in each protected action ballot, the action described in 1 of the question proposed in the applications. We agree that by describing the proposed action as “not complying with restrictions” on various communications clearly indicates that unrestricted communications are not within the ambit of any work that any employee who would be balloted is required to undertake. It follows that the action, whatever else it might be, is not a restriction or a limitation on or a delay in the performance of the employee's work. Rather it involves taking of action or engaging in action above or beyond or outside the range of an employee’s normal work. Nor is there any relevant “limitation or restriction” for the purposes of s.19(1)(b) of the FW Act and there is no prohibition of work for the purposes of s.19(1)(b), and thus no "ban”. We also consider, contrary to ASU’s submission, that as formulated the action described does not amount to a restriction on offering for or accepting work only if a particular policy of the employer's does not apply. We also do not accept that the action described in 1 of the question can be read as the acceptance of work, or offering for work, on the proviso that the employee is not bound by a policy restricting comment or provision of information to others. If that is what the description was intended to convey, we can conceive many forms of much more direct language which would clearly communicate that result.

[60] It follows that no appellable error is disclosed.

Permission to appeal

[61] We have decided to grant permission to appeal to the Council because it has made out an arguable case of appellable error and because the appeal raises important issues concerning the construction of aspects of the legislative scheme regulating protected action ballot applications and orders and s.19 of the FW Act. We also consider that ASU should be given permission to appeal because its appeal raises interesting questions about the kind of action described in a protected action ballot question which is capable of falling within the description of “the nature of the proposed industrial action”.

Conclusion

[62] For the reasons given, though we grant permission to the ASU to appeal, we dismiss the appeal.

[63] As to the Council’s appeal, we have found appellable error in the Commissioner’s decision to include in the question in each order the action described in 4, 8, 9, and 10 of the respective applications. To that extent, we uphold the appeal but otherwise we dismiss the appeal so far as it concerns the Commissioner’s decision to include the action described in 2 and 5.

Orders

[64] We order as follows:

Council’s appeal

1. We grant permission to appeal, uphold the appeal so far as it concerns the Commissioner’s decision to include in the orders PR595296, PR592298 and PR595300 the action described in 4, 8, 9 and 10 of the question proposed in the applications (B2017/646, 647 and 648) and vary the decision to in [[2017] FWC 4184] to the extent necessary to give effect to our conclusion that the action described in 4, 8, 9 and 10 of the aforementioned applications did not describe the nature of the proposed industrial action;

2. The appeal is otherwise dismissed;

3. The orders in PR595296, PR592298 and PR595300 are varied by deleting from Schedule A, paragraphs numbered 3, 7, 8, and 9 and consequentially numbering the remaining paragraphs;

ASU’s appeal

4. Permission to appeal is granted;

5. The decision in [[2017] FWC 4184] in respect of the activity described in paragraph numbered 1 of the question in each application (B2017/646, 647 and 648) is confirmed; and

6. The appeal is dismissed.

Seal of the Fair Work Commission with Member's signature