The Federal Court has ruled that, in certain circumstances, communications with the media in breach of employees’ contracts of employment and their employer’s policies does not constitute industrial action and therefore cannot be ‘protected’ action in bargaining: Ambulance Victoria v United Voice  FCA 1119.
Why does this case matter?
In contrast to an earlier decision of the Full Bench of the former Fair Work Australia, the present decision brings some reassurance to employers that communications with the media by employees whose usual duties do not include media liaison, and which are prohibited by employees' contracts and the employer's policies, will not constitute industrial action for the purposes of the Fair Work Act 2009 (Cth) (FW Act).
Background to the dispute
- The Ambulance Employees of Australia section of the Victorian branch of the United Voice (AEA) and Ambulance Victoria have been engaged in a long running enterprise bargaining dispute.
- The AEA wished to take protected industrial action in support of its claims. One of the proposed actions involved managers making response time data available to the media without the approval of Ambulance Victoria. The ‘response time’ is the time taken between receipt of a call for assistance and the ambulance arriving to treat a patient. Ambulance Victoria opposed that action.
- It was not disputed that such action is outside the managers’ ordinary duties and in breach of their employment contracts and an Ambulance Victoria policy, which expressly prohibits the release of response time data without approval.
- The key issue before the Federal Court was whether that proposed action could constitute industrial action for the purposes of the FW Act, which essentially defines industrial action as:
- performance of work in a manner different from how it is customarily performed, or the adoption of a practice which is a restriction, limitation or delay in the performance of work
- a ban, limitation or restriction on the performance of work
- a failure or refusal to attend for work or perform any work
- a lockout of employees by an employer.
Why the AEA argued the action was ‘industrial action’
The AEA relied on both the first instance and appeal decisions of the former Fair Work Australia in Australian Nursing Federation v Mornington Peninsula Shire Council1 (ANF Case) to support its argument that the proposed action was industrial action, and could thus engage the protections available under the FW Act. A majority of the Full Bench in the ANF Case found that distributing information to clients and the media about the reason for industrial action was, depending on the circumstances, capable of constituting industrial action for the purposes of the FW Act.
Justice Tracey not convinced
Justice Tracey found that the proposed action was not industrial action for the purposes of the FW Act. His Honour preferred the position taken by Senior Deputy President Kaufman, dissenting, in the ANF Case. Kaufman SDP had held that the distribution of information, even within working hours, did not amount to the performance of work in a manner different from that in which it is usually performed, the adoption of a practice in relation to work or a restriction, limitation or delay in the performance of work. A different result, both Tracey J and Kaufman SDP recognised, would have arisen if the proposed action involved an express stoppage of work for the purpose of distributing information, or was to be engaged in only by those employees whose usual duties involved media liaison.
Tracey J looked at the ordinary duties of the relevant employees and said that the proposed action could not be said to result in a restriction, limitation or delay in the performance of those duties.
His Honour held that:
- the action proposed was the taking of action above, beyond and outside the range of the managers’ normal duties, not the performance of normal work in a manner different from that in which it is customarily performed
- rules, policies and contractual provisions which prohibit certain conduct in the course of employment do not directly impact on the manner in which work is performed
- the breach of such a prohibition cannot be seen as a departure from the usual manner of performance of an employee’s work – otherwise, disobeying policies which prohibit sexual harassment or discrimination could be regarded as a departure from the usual manner of performing work and in that way amount to industrial action
- a stoppage of work, even for a short time, to communicate with the media may itself constitute industrial action, but this was not proposed by the AEA.
Lessons for employers
Employers should note that:
- communications with the media by employees not employed in media liaison roles and which are prohibited by employees' contracts and the employer's policies do not constitute industrial action for the purposes of the FW Act
- a stoppage of work, even for a short time, to communicate with the media may itself constitute industrial action, even when undertaken by employees not employed to liaise with the media
- such employees who communicate with the media in breach of their employment contracts and their employer's policies face potential liability for their actions, including for breach of contract, because their actions will not be capable of constituting protected industrial action
- there are anomalies with this case. Even applying Tracey J’s own example, it seems that whilst disobeying a policy prohibiting sexual harassment cannot of itself constitute industrial action, stopping work to do so could be.