The Fair Work Act defines industrial action as follows
FAIR WORK ACT 2009 – SECT 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).”
But what is performing work in its customary way? What about wearing silly clothing like underwear? The Fair Work Commission has laid out the rules for when this will constitute industrial action and here is the case which does just that
“The fact that the employees who participated in the undies protest were performing work in a manner different from that in which it is customarily performed does not necessarily mean that those employees were taking industrial action. Respectfully, I refer to the helpful Judicial authority regarding the correct construction to be provided to s. 19 (1) (a) of the Act which can be found in the Judgement of Ross J in the case of United Firefighters Union of Australia v Easy 4 (Easy). The following extracts from the Judgement in Easy have relevant application to the circumstances in this instance:
“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.” and
“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.” and
“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.”
McLachlan v Illawarra Coal Holdings Pty Ltd T/A South32 (2017) FWC 5167 delivered 10 November 2017 per Cambridge C