No Point in Nitpicking

Arguing about the meaning of a word in a Protected Action Ballot Order (PABO) as a means to head off protected industrial action has proved to be something of a folly for Australia’s largest telco. The Fair Work Commission has dismissed the attempt, saying that the wording of a PABO is not to be interpreted in a technical or pedantic way.

The word in contention was “periodic” and the company argued its meaning required there to be some sort of regularity to the timing of the industrial action. Surprisingly, the employer did not appear to realise that the word “periodic” also means “intermittent”, which is what the union argued, and the FWC accepted.

To be protected, any industrial action employees take has to be in accordance with the terms of the relevant PABO which sets out what form(s) the action is to take. These terms are usually framed in straightforward language so that the employees concerned can easily understand their options, and either agree or reject them.

The FWC stressed that the terms used in PABOs, to be effective, need to be sufficiently clear to avoid ambiguity, but also, expressed in “ordinary industrial English”. To do otherwise risked rendering the ballot questions meaningless and therefore the whole PABO similarly pointless.

This was not a case of poor or sloppy drafting, but rather one where a word with more than one meaning was used quite legitimately. Context was everything, and the FWC made that point in deciding for the union.

This decision reinforces earlier cases and underscores the importance of concentrating on the issues, not the side-shows, when it comes to bargaining. Even if the employer had been successful in this matter, all a win would have done is delay things. Better to focus on the bargaining and not antagonise a workforce by hiding behind technicalities.

Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2019] FWC 2266 (4 April 2019)