The union (Australian Nurses Union, Victorian Branch) applied to FWA for a protected action ballot. The employer (Mornington Peninsula Shire Council) did not oppose the application although they contended that one of the questions on the proposed ballot was not “industrial action” and therefore could not properly be included in the list of ballot questions. The contentious part of the question sort employee approval for the wearing of campaign clothing rather than their uniform.
In the first instance FWA found the question went to the performance of work in a manner that is contrary to a lawful direction of the employer to wear a uniform. For this reason FWA was of the view it could properly be included in a list of questions for a protected action ballot.
On appeal the Full Bench of FWA were split. Two members of the bench agreed with the original decision of FWA whilst one member dissented.
In the majorities view the wearing of campaign clothing is capable of constituting a ban and the “performance of work” in section 19 of the Fair Work Act involves when “work is performed, where work is performed, how work is performed and the conditions under which work is performed”.
The decision gives the green light to the wearing of union campaign clothing (or other clothing) as protected industrial action.