FEDERAL COURT OF AUSTRALIA St Johns Ambulance Australia WA Ambulance Service Inc v Australian Liquor, Hospitality & Miscellaneous Workers Union [2002] FCA 898 Workplace Relations Act 1996 (Cth) ss 170MI(2), 170ML, 170ML(2), 170MO, 170MO(2), 170MT, 170NC, 170NC(2), 170ND, 170ND(e), 170NE, 170NG, 170NO(5) Dr Spry's Equitable Remedies, 5th ed. 1997 at pp 402 to 403 Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 referred to National Workforce Pty Ltd v Australian Manufacturing Workers Union (No 2) (1998) 3 VR 265 referred to Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 followed Miller v Jackson [1977] QB 966 referred to ST JOHNS AMBULANCE AUSTRALIA WA AMBULANCE SERVICE INC v AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS UNION and JAYNE REID and EMPLOYEES LISTED IN SCHEDULE A OF THE APPLICATION W221 of 2002 RD NICHOLSON J 13 JULY 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 221 of 2002 BETWEEN: ST JOHNS AMBULANCE AUSTRALIA WA AMBULANCE SERVICE INC APPLICANT AND: AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS UNION FIRST RESPONDENT JAYNE REID SECOND RESPONDENT EMPLOYEES LISTED IN SCHEDULE A OF THE APPLICATION THIRD RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 13 JULY 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The first, second and third respondents, whether by themselves, their servants, agents or howsoever otherwise, are restrained from: 1.1 engaging in, organising, inciting or otherwise encouraging industrial action; and 1.2 engaging in, continuing to organise, incite or otherwise encourage industrial action; and 1.3 engaging in, threatening to organise, incite or otherwise encourage industrial action; pursuant to or in purported reliance upon the notices to the applicant dated 8 July 2002 being exhibit AJA3 and described in paragraph 18 of the affidavit of Anthony John Ahern sworn on 13 July 2002 until noon on Thursday, 18 July 2002. 2. In the above declarations and orders "industrial action" means industrial action as defined by s 4 of the Workplace Relations Act 1996 (Cth) in the State of Western Australia on and after 2.30pm on Saturday, 13 July 2002 in the Perth Metropolitan area. 3. Adjourn for further consideration the claims for penalties and for further relief against the respondents to a date to be fixed. 4. Liberty to any party to apply on short notice. 5. Question of costs adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 221 of 2002 BETWEEN: ST JOHNS AMBULANCE AUSTRALIA WA AMBULANCE SERVICE INC APPLICANT AND: AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS UNION FIRST RESPONDENT JAYNE REID SECOND RESPONDENT EMPLOYEES LISTED IN SCHEDULE A OF THE APPLICATION THIRD RESPONDENT JUDGE: RD NICHOLSON J DATE: 13 JULY 2002 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant brings an application for injunctive relief under s 170NG of the Workplace Relations Act 1996 (Cth) ("the Act"). That provides that an eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision. As a consequence of s 170NE of the Act, this Court is an eligible court for the purposes of that section. 2 A penalty provision is defined for the purposes of the Division by s 170ND, the relevant paragraph of which is (e) which refers to s 170NC. That section deals with a prohibition against a person taking or threatening to take industrial action or other action, or refraining or threatening to refrain from taking any action: "With intent to coerce another person to agree, or not agree, to...making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3, or approving any of those matters." However, s 170NC does not apply in that respect to action or industrial action that is protected action - see s 170NC(2). Protected action is itself defined by s 170ML with reference to s 170MT, which confers certain legal immunity on such action. It is not necessary to explore the nature of protected action here. It is sufficient to say that if any action is to be taken as specified in s 170ML(2) by an organisation of employees or a member of such an organisation or an officer or employee of such an organisation or an employee who is a negotiating party, the action is not protected action unless the requirements set out in s 170MO(2) are met. Relevantly, par (b) of that subsection provides: "The organisation, or the employee who is the negotiating party, has given the employer at least three working days' written notice of the intention to take the action." 3 The factual circumstances relevant to a determination of the application appear from the affidavit of Anthony John Ahern filed in Court and the affidavit of Glen Bartlett to be filed in the form tabled in Court. The first affidavit makes apparent that the nature of the applicant, as its name suggests, is such that it is involved in the provision of an ambulance service throughout the state of Western Australia pursuant to a contract with the Health Department and is recognised by that Department as the principal provider of ambulance services. 4 The first respondent is a union, as its name makes apparent, the second respondent is the executive officer of the first respondent and the parties listed as the third respondent are employees of the first respondent. The last enterprise agreement between the applicant and the first respondent was for the period 1 July 2000 to 30 June 2002. This agreement was certified under the Act by the Australian Industrial Relations Commission. It continues to apply until replaced or cancelled, notwithstanding the nominal expiry date of 30 June 2002. 5 On 24 January 2002 the applicant commenced negotiations with the first respondent in relation to a replacement agreement to take effect from 1 July 2002. The affidavit of Mr Ahern in par 12 makes apparent that there were a total of 40 issues in addition to a wages claim which arose as part of those negotiations. The evidence is there has been agreement in principle on 34 of those issues. The remaining issue of significance is the wages claim issue. That is still the matter of offer and counter‑offer between the applicant and the first respondent. 6 In June 2002 the first respondent purported to give to the applicant a "notice of intention of bargaining period" pursuant to the Act and to s 170MI(2) of that Act. On 8 July 2002 on the letterhead of the first respondent, under the signature of an industrial officer, a purported notice of intention to take industrial action delivered pursuant to s 170MO of the Act was given to the applicant. 7 In its terms the notice states that it is a written notice of the intention of officers, employees and members of the first respondent to take industrial action commencing on Friday, 12 July 2002. It is not necessarily clear from that description whether the notice is also given on behalf of the second and third respondents. 8 The nature of the intended action is described in the first instance as "stoppages of work on an ongoing basis for whole of organisation or on a shift basis; protests at or around the place where agreement is sought and/or other relevant places." Additionally it continues by stating that "Thereafter: some combination of the above, either at the same time or at different times." 9 At a meeting between representatives of the applicant and representatives of the first respondent on 10 July 2002 the applicant was informed there would be a stop work meeting of its ambulance service officers. The history of the negotiations is set out in the affidavit of Mr Ahern. It is sufficient to say that on Friday 12 July in the morning the applicant was advised that a stop work meeting had been held and that the ambulance service employees had resolved that the ambulance service would: (a) ignore bypass; (b) respond to all calls; (c) not move patients out of hospital other than into hospital transfers for such matters as renal, oncology or radiotherapy treatment; (d) not move "grandma" back to nursing homes. It will be observed that (b) is not an instance of a work ban, but that the remaining three paragraphs are. The reference to "bypass" is a reference to an arrangement that has been put in place for a number of years between the Health Department, the applicant and all the hospitals with an emergency department in the metropolitan area. It describes a situation where the emergency department of a hospital is determined, by that hospital, to be incapable of receiving any more patients. When that occurs the hospital notifies the applicant and advises that it is on bypass. This means that all patients save those with critical, life‑heightened threatening injuries are to be taken to alternative emergency departments. Upon receiving notification from a hospital that it is declared a bypass the applicant, upon despatching an ambulance crew, will instruct that crew to bypass that particular hospital. 10 Negotiations have been ongoing and although the idea was floated in the course of those negotiations that the first respondent may not continue to ignore bypass, the position before me is that has not been the subject of an agreed concession either on the part of the first respondent or on the part of the other respondents. 11 The tests for the grant of injunctive relief are well known. The first test is that there must be a serious issue to be tried. Here reliance is placed upon matters arising from s 170NC of the Act to establish a case that there are serious issues to be tried. The first of those is that the three issues identified earlier in these reasons as involving work bans are industrial action or other action taken with the necessary intent to satisfy the requirements of section 170NC, that is, an intent to coerce the applicant to agree to the making of the new certified agreement which is under negotiation. 12 The second issue arises in relation to the provisions of s 170NC(2) and that is whether the notice which was given as a purported notice of protected action is in fact an effective notice. In Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 578 Wilcox and Cooper JJ with whom Burchett J agreed on this point accepted that a notice that referred only to bans and rolling stoppages without any indication of the nature of the bans or the location of the rolling stoppages does not adequately disclose "the nature of the intended action" as required by s 170NO(5). 13 Indeed, the same reasoning was apparent in the Court of Appeal of the Supreme Court of Victoria in National Workforce Pty Ltd v Australian Manufacturing Workers Union (No 2) (1998) 3 VR 265 where the Court of Appeal agreed with the judge at first instance that "employers are entitled to more specificity" than that which the notice in that particular case contained. 14 I am satisfied that the notice in the present case contains more specificity than the notice at issue in National Workforce, nevertheless there are serious issues to be tried as to whether it in fact properly invokes the notion of protected action and thus provides a reason for the non-application of s 170NC. For those two reasons I consider that the application for interim relief has established the first of the requirements for such relief. 15 The remaining requirement is that the balance of convenience justifies the granting of the injunctive relief. The circumstances now facing the parties is particularly supported by the affidavit of Glen Bartlett which makes apparent that the matter is listed before the Industrial Relations Commission on 15 July 2002. It may be that out of the hearing before the Commission the present dispute is in some way resolved or that a path is made apparent by which negotiations can continue. Until that position is known, however, the balance of convenience in my view favours the applicant. 16 It does so because of the matters set out in the affidavit of Mr Ahern, particularly at pars 31 to 33. Those paragraphs spell out the importance to the applicant and to the public of the efficient operation of the bypass system. 17 It is apparent that there could be public endangerment in the event that the system and those in charge of it could not operate with full knowledge of the circumstances in which it was operating and the certainty necessary for such operation. 18 In this respect I place reliance on what was said in Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 42 by way of reference to a passage from Dr Spry's Equitable Remedies, 5th ed. 1997 at pp 402 to 403 cited with approval by Cumming-Bruce LJ in Miller v Jackson [1977] QB 966 at 988. 19 For those reasons I consider that the applicant has made out a case for interim relief pursuant to the provisions of s 170NG. 20 However, the interim relief should be cast in such a way that it can be easily discharged in the event of the proceedings before the Industrial Relations Commission resolving matters between the parties. It should also be cast in a way that would enable it to continue if those proceedings do not resolve themselves on Monday, 15 July 2002. 21 Accordingly, I am prepared to make orders in the form now drafted for the applicant which would restrain the industrial action in the notice of industrial action to which I have referred and would do so until noon on Thursday, 18 July 2002 or until the exercise of a liberty by any party to apply on short notice and the Court then considering the matter. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 18 July 2002 Counsel for the Applicant: Mr AJ Power Solicitor for the Applicant: Clayton Utz Counsel for the First to Third Respondents: No appearance for the Respondents Date of Hearing: 13 July 2002 Date of Judgment: 13 July 2002