By Kamal Farouque
Employers are always looking for ways to restrict unions and their members from taking protected industrial action.
One of the potential lines of employer attack is to argue that the notified industrial action is not actually authorised by the ballot question. Under the Fair Work Act 2009, one of the requirements industrial action to be protected action is that the action was authorised by a protected action ballot (see s 411(2)).
An employer wishing to deploy this argument will invariably use a s 418 application as its platform to attack the notified industrial action (which the union considers protected) as unprotected industrial action.
Maurice Blackburn has represented union clients in two significant cases before Full Benches of the Fair Work Commission which raise important issues on the question of whether industrial action is authorised by a protected action ballot.
John Holland v AMWU
The first decision is an earlier decision of Fair Work Australia in John Holland v AMWU  FWAFB 526 (28 January 2010).
This decision was an appeal by the employer on the validity of a ballot order on the basis that the ballot question was vague, ambiguous and uncertain. Maurice Blackburn represented the AMWU in the appeal.
The Full Bench issued important guidance about the approach of the commission on ballot questions.
Firstly, it noted that the drafting of the ballot question is generally a matter for the union to frame (See par ). Consequently, it shouldn't be the subject of extensive intervention at the hearing where the union is seeking the ballot order
Secondly, the Full Bench noted the ambiguity or uncertainty in the ballot question is undesirable and if the ballot question is too ambiguous, there may be an issue whether industrial action, when taken is protected industrial action. However, the Commission also observed, that the true issue is whether the ballot question described the industrial action in a way that the relevant employees who would vote on the ballot were capable of responding to (see par )
NTEU v RMIT
The second decision is a more recent case of NTEU v RMIT (FWC Full Bench) which was heard in November 2013.
In this matter, members of the NTEU had voted in favour of a ballot question which authorised "Bans or partial bans on the recording, or transmission to the employer, of assessment results."
The NTEU notified RMIT of a ban or partial ban on assessments results at an RMIT campus' overseas (ie academic staff in Australia would not record or transmit assessment results for students at the overseas campuses including one in Singapore). The NTEU notification included several exemptions from the ban including Australian citizens.
This is because there had been several decisions in the commission where a ban on processing assessment results had been suspended by the commission pursuant to s 424 on the basis that the ban threatened the health and welfare of students. So, by excluding Australian citizens from the ban, the NTEU was reflecting the legislative policy in s 424 namely, that industrial action should not threaten health and welfare of the Australian population or part of it.
RMIT made a s 418 application. RMIT argued that the ban which excluded Australian citizens was "inherently discriminatory" and consequently could not have been in the reasonable contemplation of the members who voted to approve the ballot question.
At first instance, Commissioner Wilson found that the industrial action was inherently discriminatory, that s 3(e) and s 578 of the Fair Work Act disclosed that Fair Work Act had a general policy against discrimination and consequently, a reasonable person voting on the ballot question could not have understood that they were authorising industrial action which was inherently discriminatory. Commissioner Wilson issued a s 418 order against the NTEU and its members.
Represented by Maurice Blackburn, the NTEU appealed the decision to the Full Bench of the Commission. The NTEU argued that:
(a) The results ban, on its face, was within the express terms of the ballot question in that the results ban constitutes a 'partial ban' on the recording and transmission of results.
(b) The phrase "inherently discriminatory" was meaningless. As observed by the High Court in IW v City of Perth (1997) 191 CLR 1 at 15, in order to constitute unlawful discrimination, legislation must specifically prohibit discrimination.
(c) The statutory provisions (s 3 and s 578 of the Fair Work Act) do not operate to prohibit discrimination in the context of industrial action such as the results ban.
(d) Citizenship as the criteria for exclusion from the Results Ban does not raise a protected attribute in the Racial Discrimination Act 1975 (Cth) or the Fair Work Act. There are a number of decisions of the Federal Court where the attribute of "national origin" (which is a protected attribute under the Racial Discrimination Act) has been interpreted as being distinct from 'citizenship'.
(e) Section 424 of the Fair Work Act itself specifically protects the Australian population or part of it from particular risks of harm of industrial action. In this context, there was nothing objectionable about the results ban.
(f) The NTEU's exemption for Australian citizens was intended to make the results ban 'effective' under the Fair Work Act, and the reasonable person who voted on the ballot question would assume and want the bans which are approved to be effective and immune from challenge.
The Full Bench overturned Commissioner Wilson's decision and the s 418 orders were set aside. As at the date of writing this update, the Full Bench has not published its full reasons.