What can be protected industrial action?

A Federal Court judge has ruled that the provision of confidential information to the media by a union and its members engaged in industrial bargaining for a new enterprise agreement does not constitute “industrial action” for the purposes of being protected. In doing so the judge opposed a contrary decision of a Full Bench of the Fair Work Commission. It was common ground that the action threatened by the employees would have constituted both a breach of their employment contracts and their employer’s media policy.
 
According to His Honour, “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.”
 
“Were it otherwise”, the judge reasoned, employees who contravened their employer’s sexual harassment or discrimination policies in taking action would be able to claim “protected” status under the Act and that the proposed action could not be described as a restriction or limitation on, or a delay in, the performance of the employees’ 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,” he said.
 
Ambulance Victoria v United Voice (2014) FCA 119 delivered on 17 October 2014