Latest PABO developments. Does a social media post constitute protected action?
Overview
To understand what a Protected Action Ballot Orders or PABO is, we must first consider it through the prism of industrial action.
Industrial action usually involves employees going on strike (refusing to attend or perform work) or imposing work bans (refusing to perform all their normal duties). In many instances and in response to employee industrial action, employers may lock out their employees (close the doors or gates of a workplace and refuse to allow them to work).
Under the Fair Work Act (Act), industrial action is defined as:
employees performing work in a manner different to how it is normally performed.
employees adopting a work practice that restricts, limits or delays the performance of work.
a ban, limitation or restriction by employees on performing, accepting or offering to work.
employees failing or refusing to attend for work or perform any work.
the lockout of employees from their employment by their employer.
Have PABOs been subject to the recent IR changes?
Yes. From 6 June 2023 the following changes will take effect with respect to protected ballot order applications:
When the Fair Works Commission makes a protected ballot order it will also make an order directing all bargaining representatives to attend a conference before the Commission during the ballot period.
The Commission will approve eligible protection ballot agents.
The new Section 448A of the Fair Work Act requires that if the FWC makes a PABO, it must also make an order that directs all bargaining representatives to attend a mandatory conciliation conference before the ballot closes.
How have the recent changes to the PABO process been received?
Some aspects of the changes have naturally led to questions of application. The recent Fair Work Commission Full Bench decision, CEPU v Nilsen [2023] FWCFB 134 recent demonstrated that the FWC is interested in narrowing down the issues and addressing bargaining delays.
Also, there has long been some concern about what type of information can be shared and this is particularly relevant when it concerns employee details. This issue was recently considered in the FWC matter of Transport Workers’ Union of Australia v Clark’s Logan City Bus Services (Qld) Pty Ltd [2023] FWC 1721 (17 July 2023).
Further, there has been discussion about what can constitute protected action. This was recently addressed in the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v The Laminex Group T/A Laminex Group Pty Ltd [2023] FWC 2142.
Background Facts
This matter concerned an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of The Laminex Group T/A Laminex Group Pty Ltd (Laminex).
The FWC was advised by Laminex that it did not object to the application but objected to several of the questions raised in the proposed action. Specifically, Laminex objected to the terms of a PABO sought by the CEPU's, claiming the union's proposed action of stopping work to post on social media or speak to the media about bargaining or industrial action, "does not relate to limitations or performance of work in a different manner". In other words, a social media post might not constitute industrial action under Section 19 of the Act.
Decision and Reasoning on Appeal
DP Wright of the FWC found in favour of the CEPU’s application and specifically that the social media posts did constitute industrial action.
DP Wright stated as follows:
I find that the stoppages of work in order to undertake a specific activity, being to post on social media or talk to the media about the bargaining and/or industrial action, constitute industrial action within the meaning of s.19 of the Act. Given that Laminex has a social media policy which covers personal use of social media by employees, posting on social media about the bargaining and/or industrial action may amount to the performance of work by an employee in a manner different from that in which it is customarily performed.
DP Wright was also of the view that there was nothing ambiguous in the CEPU’s questions.
Key Takeaways
The key takeaway for employers is to ensure that the questions posed by the Union or bargaining representative be clear and concise.
If you require assistance with industrial relations issues like this case, please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Sonia McCabe
Senior Associate
T 03 5226 8558
E smccabe@ha.legal
Matthew Synoradzki
Lawyer
T 03 5226 8542
E msynoradzki@ha.legal
