AREEA employee relations consultant Estha van der Linden writes this case summary which offers a lesson on what can be considered ‘industrial action’.

IN July this year, the Australian Services Union (ASU) applied for a Protected Action Ballot Order to authorise the taking of industrial action by its members employed by Lend Lease at Victorian water authority, Coliban Water.

The application was opposed by Lend Lease on the grounds including that the proposed action did not fall within the definition of industrial action in the Fair Work Act 2009, and was therefore invalid.

Lend Lease also argued that the proposed actions could not be protected industrial action because they involved the defacing of its private property or the use of its private property in an ‘impermissible manner’.

Commissioner Bissett rejected Lend Lease’s argument, finding that all of the proposed actions fell within the Act’s definition of industrial action and are valid, including:

• Attaching union and industrial campaign-related material to outgoing mail or email, and adding it to Lend Lease materials and displays;
• Wearing and distributing material such as t-shirts, badges, written communications and stickers in support of the proposed agreement;
• Not responding to non-emergency emails or voice mail messages until after 1pm each day, with customers before then to receive an automatic message detailing that the employee is undertaking industrial action because ‘I believe staff should be treated with respect and decency at work’; and
• Writing messages on Lend Lease or Coliban Water company cars ‘representing the concerns of Lend Lease staff’ about the bargaining process.

In ruling, the Commissioner rejected Lend Lease’s argument regarding the use of its private property, finding that industrial action inevitably involves employees using the employer’s property in some way.

Lend Lease’s argument that the proposed industrial action would cause damage to its private property was also rejected. The Commissioner found that if damage occurred, the industrial action may lose its protected status under the Act, however, this did not mean that the proposed action was not industrial action as defined by the Act.

The ASU made a commitment to not damage any property.

Implications for employers

Employers should be aware that non-traditional forms of industrial action, as outlined above, fall within the definition of industrial action in the Fair Work Act 2009.

When planning a strategy to deal with industrial action, employers should be aware of the non-traditional forms that industrial action may take in order to deal effectively with the action.

Click here to read the full decision: Australian Municipal, Administrative, Clerical and Services Union v Lend Lease [2014] FWC 5676 (20 August 2014).

For more information and guidance on this matter, contact your local AREEA consultant.