In Ambulance Victoria v United Voice [2014] FCA 1119 (17 October 2014), Justice Tracey of the Federal Court of Australia found that making ambulance response time data available to the media could not constitute industrial action which would be subject to the immunities for protected action under the Fair Work Act 2009 (Cth) (FW Act).

In this In Brief, we examine the decision and its implications for employers when confronted with non-conventional forms of “industrial action” in bargaining disputes.

Background

Ambulance Victoria (AV) and Ambulance Employees Australia (AEA), a branch of United Voice, have been involved in long-running negotiations for a new enterprise agreement. The AEA balloted its members on a range of forms of proposed protected industrial action, including the proposal that team managers would make ambulance response time data available to the media – without the approval of AV’s Executive General Managers.

Response times relate to the time between the receipt of a call for ambulance assistance, and the time when the first responding unit arrives to treat a patient. AV team managers have access to response time data in the course of their duties. However, under AV’s media comment policy, such data must not be released without the authority of the organisation’s Executive General Managers-Operations.

The AEA notified AV that various forms of industrial action approved in the ballot – including the media leaks – would commence in late September. AV immediately sought an injunction in the Federal Court, arguing that the provision of response time data to the media does not constitute industrial action of a kind protected by section 415 of the FW Act.

Key Statutory Provisions

Section 415 of the FW Act provides that no action lies under any law (e.g. the common law industrial torts, or relevant statutory prohibitions on industrial action) in respect of “protected industrial action”.

Under sections 408-409, “employee claim action” (one of the forms of protected industrial action) includes industrial action organised or engaged in by employees (or their bargaining representatives) for the purpose of supporting or advancing claims for a proposed enterprise agreement.

The definition of “industrial action” in section 19(1) includes:

  1. the performance of work by an employee in a manner different from that in which it is customarily performed, or ... a restriction or limitation on, or a delay in, the performance of the work;
  2. a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee ...

Justice Tracey’s Decision

The AEA relied on the first instance and appeal decisions of Fair Work Australia (as it then was) in Australian Nursing Federation v Mornington Peninsula Shire Council [2011] FWA 4235 and [2011] FWAFB 4809.

In those decisions, Vice President Lawler at first instance and a Full Bench majority in the appeal found that proposed protected action – in the form of distributing information to clients and the media about the reasons for taking industrial action, and wearing campaign clothing – was capable of constituting industrial action within section 19(1) of the FW Act.

The Full Bench majority (Senior Deputy President Watson and Commissioner Gooley) held that the distribution of information to the media by employees could constitute industrial action within the meaning of section 19(1)(a) or (b), if the employees ceased or interrupted their work in order to communicate the reasons for industrial action to clients or the media.

Further, in the majority’s view, “the performance of work” in section 19(1)(b) “is not restricted to how the tasks associated with a particular job are performed. It involves for example when work is performed, where work is performed, how work is performed and the conditions under which work is performed.” ([2011] FWAFB 4809 at [25])

However, Justice Tracey in Ambulance Victoria v United Voice considered that the construction of section 19(1)(a)-(b) adopted by the Full Bench majority in the ANF case was too broadly stated. In his Honour’s view:

  • The “work” referred to in the FW Act definition of industrial action is not work generally, but rather the work performed by the employee taking the relevant action.
  • Therefore, it is necessary to identify the work normally performed by the relevant employees and how it is usually performed.
  • Here, the duties of the AV team managers included the collection and analysis of information relating to ambulance response times in their areas. It was not part of the usual duties of the AV team managers to provide response time data to persons outside AV, including the media.
  • The fact that provision of such information would breach the employees’ contractual duties, and the requirements of applicable AV policies, did not make such action “the performance of work ... in a manner different from that in which it is customarily performed” (within section 19(1)(a)).
  • Nor could the proposed action be said to result in a restriction, limitation or delay in the performance of the managers’ normal duties (within section 19(1)(b)): “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.” ([2014] FCA 1110 at [24])
  • However, if the proposed action were to involve a stoppage of work, even briefly, to enable the managers to distribute data to the media, this might fall within the definition of industrial action and be capable of being protected under the FW Act.

Justice Tracey indicated that while he was not minded to grant injunctive relief, he may (after hearing the parties further) issue a declaration so that both AV and the team managers could order their conduct so as to avoid any contraventions of the FW Act.

Implications for Employers

The decision in Ambulance Victoria v United Voice imposes an important limitation on the capacity of employees and unions to undertake non-conventional forms of “industrial action” in bargaining disputes.

This approach has become an increasingly common union tactic in a range of contexts - for example:

  • the wearing of red ties and making of cockpit announcements by Qantas international pilots during the airline’s 2011 dispute; and
  • further types of proposed action by AV employees in the form of:
    • inviting members of the media and politicians to accompany them in ambulances during working hours;
    • writing anti-government messages on ambulances and other AV vehicles as part of the union’s public campaign for wage increases.

Several decisions indicate that the wearing of “campaign clothing” by employees can constitute industrial action (and therefore, protected action) under the FW Act, especially where this involves a variation to the employer’s usual dress or uniform requirements.[1] On the other hand, the Federal Court in United Firefighters Union v Easy [2013] FCA 763 (2 August 2013) found that an employee’s wearing of a union t-shirt did not involve the performance of work in a different manner to the way it was usually performed under section 19(1)(a), because there was "no evidence that [Metropolitan Fire Brigade] non-operational staff were required to wear a particular uniform, nor is there any evidence of a policy proscribing the wearing of union t-shirts".

There has been no definitive ruling by a court, as yet, on whether writing on the employer’s vehicles can be considered industrial action (and subject to the FW Act’s immunity provision):

  • Commissioner Bissett in ASU v Lend Lease [2014] FWC 5676 found that such action was industrial action.
  • However, that decision must be in some doubt in light of Ambulance Victoria v United Voice – on the basis that, at least in the ambulance service context, it is not part of the employees’ usual duties to write (or not write) messages on AV’s vehicles. It is most likely assumed that employees will not do so. If they do, this may involve breaches of their employment contracts and/or AV policies – but (following Justice Tracey’s analysis) this of itself would not make the conduct industrial action for purposes of the FW Act.
  • The final words in s 19 of the FW Act definition of ‘industrial action’ being a limitation or restriction on the performance of work sometimes gets overlooked. It is an important part of the analysis for these non conventional forms of action.
  • The challenge for employers becomes managing this behaviour. If the action forms part of an application for a protected action ballot it should be opposed. Similarly if that step was not taken and the action was notified as part of protected action. In such a case one option is to seek relief from the court as AV did seeking injunctions and declarations. Alternatively, as was done in the case of anti-government posters, self help may be an option. In this case the approach was to simply take the posters down. What would not be available is relief under s 418 of the FW Act seeking stop orders against unlawful industrial action.