FEDERAL COURT OF AUSTRALIA Ambulance Victoria v United Voice [2014] FCA 1119 Citation: Ambulance Victoria v United Voice [2014] FCA 1119 Parties: AMBULANCE VICTORIA v UNITED VOICE File number: VID 561 of 2014 Judge: TRACEY J Date of judgment: 17 October 2014 Corrigendum: 18 November 2014 Catchwords: INDUSTRIAL LAW – proposed industrial action to release ambulance response time data to media – whether action constitutes industrial action of the kind protected by s 415 of the Fair Work Act 2009 (Cth) – whether the proposed action results in a restriction or limitation on or delay in the performance of the employee's normal duties Legislation: Fair Work Act 2009 (Cth) ss 19, 343, 408, 409, 414, 415, 437 Workplace Relations Act 1996 (Cth) s 4 Cases cited: Australian Nursing Federation v Mornington Peninsula Shire Council [2011] FWA 4235 – considered Australian Nursing Federation v Mornington Peninsula Shire Council [2011] FWAFB 4809 – considered CFMEU v Giudice (1998) 159 ALR 1 – cited David's Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 – considered Date of hearing: 16 October 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: Mr F Parry QC and Ms R Sweet Solicitor for the Applicant: Thomas Geer Counsel for the Respondent: Mr E White Solicitor for the Respondent: United Voice FEDERAL COURT OF AUSTRALIA Ambulance Victoria v United Voice [2014] FCA 1119 CORRIGENDUM 1. The last sentence in paragraph 20 of the reasons should read: "In dealing with the equivalent definition of "industrial action" under s 4 of the Workplace Relations Act 1996 (Cth), which notably, omitted the words "by an employee" after the words "performance of work" in the relevant paragraphs, their Honours expressed the view (at 570) that: …" I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 18 November 2014 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 561 of 2014 BETWEEN: AMBULANCE VICTORIA Applicant AND: UNITED VOICE Respondent JUDGE: TRACEY J DATE OF ORDER: 17 OCTOBER 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The further hearing of the proceeding be adjourned to a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 561 of 2014 BETWEEN: AMBULANCE VICTORIA Applicant AND: UNITED VOICE Respondent JUDGE: TRACEY J DATE: 17 October 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The Ambulance Employees Australia Victoria ("the AEA") is a Branch Section of United Voice. It has been engaged in a long running dispute with the applicant ("Ambulance Victoria") in relation to the making of an enterprise agreement. AEA wishes to take industrial action in support of its claims. It also wishes to obtain for itself and its members protection, provided by s 415(1) of the Fair Work Act 2009 (Cth) ("the Act"), against any legal consequences arising from the taking of such action. The AEA caused a protection action ballot to be conducted to determine whether members supported the taking of various forms of action. The ballot, which was conducted pursuant to the provisions of Division 8 of Part 3-3 of Chapter 3 of the Act, received the support of a majority of members. 2 One of the actions approved in the ballot was identified as "Action 12". It read: "12. Members who are acting/appointed Team Managers and Senior Team Managers will make all response time data for available (sic) to the media without the approval of Ambulance Victoria's Executive General Managers." The Secretary of the AEA subsequently advised Ambulance Victoria that it was only proposed that members would take such action during their "function time" which referred to normal hours of duty. 3 The "response time" is the time taken between the receipt of a call for ambulance assistance and the time at which the first responding unit arrives to treat the patient. The term is broad enough to encompass aggregate figures for response times on a State wide basis, on a district or branch basis, or in individual cases. 4 In the course of their duties the managers access response time data which relates to ambulances within the area that they manage. The data is used by the managers in order to inform their decision making. 5 It was common ground that, were the managers to release response time data to the media without the approval of more senior managers, they would breach terms of their employment contract which proscribed the disclosure of such information without authority. In particular, the terms of Action 12 pick up a provision of Ambulance Victoria's media comment policy which stipulates that "operational staff must not … release AV data without the authority of the Executive General Managers–Operations." 6 Before the proposed action was taken it was necessary for the AEA to notify Ambulance Victoria in writing of the proposed action: see s 414 of the Act. It did so by notice dated 22 September 2014 which advised that various "protected action", including Action 12, would commence on 26 September 2014. Ambulance Victoria commenced this proceeding on the same day and the AEA advised the Court that it would not take such action until after a proposed hearing on 2 October 2014. On 1 October 2014 this agreement was extended to operate until a full hearing on 16 October 2014. On that day there was a further extension of the deferral until the hearing and determination of the proceeding. 7 The central question to be decided is whether proposed Action 12 constitutes industrial action of the kind that is protected by s 415 of the Act. 8 By reason of the dynamics of the negotiations, the parties sought a speedy determination of this question. Ambulance Victoria also wished to press a claim against United Voice for taking coercive action. Its ability to do so depended on whether or not Action 12 constituted protected industrial action within the meaning of the Act: see s 343(2). I agreed to deal with what I have described as the central question immediately and, having done so, to give the parties the opportunity of considering their positions in relation to the future conduct of the proceeding. THE LEGISLATION 9 Section 408 of the Act provides that industrial action is protected industrial action if it is what is described as "employee claim action relating to a proposed enterprise agreement." Relevantly s 409 provides that: "(1) Employee claim action for a proposed enterprise agreement is industrial action that: (a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and (b) is organised or engaged in, against an employer that will be covered by the agreement, by: (i) a bargaining representative of an employee who will be covered by the agreement; or (ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and (c) … (d) ... Protected action ballot is necessary (2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part)." 10 The term "industrial action" is relevantly defined in s 19(1) of the Act to mean action of the following kinds: "(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) 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; (c) … (d) …" ANALYSIS 11 The proposed Action 12 will involve managers providing response time data to the media without the necessary approval of their supervisors. The managers have access to such data for the purposes of performing their duties but it is no part of those duties to provide the information to any person outside Ambulance Victoria including the media. 12 The AEA sought to characterise the proposed action in a number of ways which, it contended, brought it within the terms of s 19(1)(a) and (b). 13 In its written submissions the AEA contended that: The relevant policies prescribing how and when response time data might be provided to external persons are policies or directions properly characterised as policies or directions about the way in which work is to be performed and the conditions under which work is performed; The policies require at least consultation with AV Corporate Communications, authorisation before the release of information, the direction of inquires to Ambulance Victoria Corporate Communications and Ambulance Victoria approval before release; By not complying with the policy employees are working in a manner different from the way they customarily do. The result is a limitation. The employees will work but are limited in the way that they will work by implementing a ban to the effect that the employees will not comply with some of the employer's directions or policies (i.e. industrial action under s 19(1)(a)); The conduct is industrial action under s 19(1)(b) in that the employees are imposing a limitation on the conditions under which they work (i.e. refusing to comply with some of the conditions forming part of the policies and/or directions of the applicant); Further, by providing the response time data during working hours the employees are not performing their usual work or are interrupting their usual work in order to communicate that data. That is a performance of work by the employees in a manner different from that in which it is customarily performed resulting in a ban, limitation or restriction upon the performance of work by the employee. 14 In supporting these contentions the AEA relied heavily on the decisions of Fair Work Australia in Australian Nursing Federation v Mornington Peninsula Shire Council at both first instance ([2011] FWA 4235) and on appeal ([2011] FWAFB 4809). The Federation had applied to Fair Work Australia for an order requiring a protected action ballot. By s 437(3) of the Act the application had to specify the question or questions to be put in the ballot. One of the questions proposed by the Federation was whether the balloted employees were prepared to authorise industrial action "in the form of distributing information to clients, and the media about the reason for industrial action, and the wearing of campaign clothing?". The Council objected to the inclusion of this question on the ground that the proposed conduct was not "industrial action" within the meaning of s 19 of the Act. 15 At first instance Lawler VP rejected this objection. He gave brief reasons for doing so: "[7] Paragraphs 19(1)(a) and (b) are concerned with the way in which work is performed. Performance of work in a manner that is contrary to a lawful direction about how that work is to be performed prima facie amounts to industrial action as defined in s.19. [8] In my view, the actions to which question 5 is directed are action that are, depending upon the circumstances, capable of amounting to industrial action as defined and therefore can properly be included in a list of questions for a protected action ballot. [9] Prima facie, an employer, is entitled to give a lawful direction to an employee about (a) the information or types of information that are, or are not, to be conveyed by an employee during the course of their employment to members of the public and others with whom the employee interacts in their work capacity; and (b) clothing that must, or must not, be worn by an employee when performing his or her work. [10] Such a direction may properly be characterised as a direction about the way in which work is to be performed. As such, a refusal to follow such a direction will involve industrial action. It follows that employees who wish to take action of this sort as part of a campaign for an enterprise agreement and yet ensure that the taking of such action does not involve unprotected industrial action have a legitimate basis for seeking to include a question such as question 5 in a protected action ballot. [11] There can, and have, been industrial disputes about such matters. Indeed, the wearing of union badges and other union insignia has been a contentious industrial matter since the early years of the 20th century." 16 A Full Bench (Watson SDP and Gooley C; Kaufman SDP dissenting) granted permission to appeal but dismissed the appeal. The majority found that the action specified in the question were "capable, depending upon the circumstances, of constituting 'industrial action'" [at [22]]. (Emphasis added). They continued: "[25] In our view, the term "the performance of work" within s.19(1)(b) of the Act 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. [26] Clearly ss.19(1)(a) and (b) of the Act are directed at different conduct. In s.19(1)(a) the conduct must cause a particular result, namely a restriction or limitation on, or a delay in the performance of work. [27] In s.19(1)(b) of the Act there need be no result from the conduct; there must simply be a ban limitation or restriction on the performance of work or on the acceptance of or offering for work by an employee. … [30] Section 19(1)(b) of the Act is therefore directed to both the work the employees do and the circumstances in which they offer to do it." 17 They held (at [23]) that the distribution of information to the media about the reason for industrial action could constitute "industrial action" "if employees ceased or interrupted their work in order to communicate the reasons for industrial action to clients or the media. In that circumstance, the action would clearly involve the performance of work by an employee in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or a delay in, the performance of the work (s. 19(1)(a)) and a ban, limitation or restriction on the performance of work by an employee (s. 19(1)(b))." Kaufman SDP dissented. His Honour said that: "[59] The first element of (a) is that there be a performance of work by an employee. Here the work performed by the 19 or so employees affected is that of supporting new mothers after they have given birth. They perform their work either at the council's maternal and child healthcare centre or they visit the homes of those whom they support. The second element is the manner in which the work is performed. It must be in a manner different from that in which it is customarily performed. The third element, which is an alternative to the second, is that there be the adoption of a practice in relation to the work. In each instance, the action must result in a restriction or limitation on, or a delay in, the performance of the work. [60] Under (b) there must be a ban, limitation or restriction on the performance of work by the employee engaging in the conduct or on the acceptance of or offering of work by the employee. [61] There are two types of conduct contemplated by question 5: first, the distribution of information to clients and the media and, secondly, the wearing of campaign clothing. It is necessary to ascertain whether either type of conduct falls within the definition of industrial action in s.19(a) or (b). [62] I fail to see how either type of conduct falls within either limb of the definition. The first conduct sought to be approved – the distribution of information – even be it within working hours, says nothing about performing the work in a manner different from that in which it is usually performed or the adoption of a practice in relation to the work. There is nothing in the nature of the proposed conduct that suggests that it would result in a restriction or limitation on, or a delay in, the performance of the work. Had the proposed conduct been along the lines of say, a stoppage of work for 5 minutes per shift or per hour in order that information might be distributed, I would have come to a different conclusion. However, the conduct sought to be approved does not contemplate the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which would be a restriction or limitation on, or a delay in, the performance of the work. In my view, conduct that had either of those effects would not be conduct that was authorised by an affirmative vote in favour of question 5. [63] The dissemination of information is clearly not a ban, limitation or restriction on the performance of work and does not fall within s.19(b). 18 Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present. 19 It is, however, to be borne in mind that the term "industrial action" bears the same meaning in s 437 as it does in ss 409 and 415. That is the meaning prescribed by s 19(1). In some respects, in my respectful opinion, the constructions, placed on paragraphs 19(1)(a) and (b), by the Vice President and the Full Bench majority in the ANF case, are too broadly stated. 20 In the first place, the "work" referred to in the definition sections is not "work" generally. It is the "work" performed by an employee. The relevant employee is an employee who is taking the relevant action. So much was held by Wilcox and Cooper JJ (with whom Burchett J relevantly agreed) in David's Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550. In dealing with the equivalent definition of "industrial action" under s 4 of the Workplace Relations Act 1996 (Cth), which, notably, omitted the words "by an employee" after the words "performance of work" in the relevant paragraphs, expressed the view (at 570) that: "… consistently with the tentative view of the Full Court in [CFMEU v Giudice (1998) 159 ALR 1], we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuades us it is likely parliament intended to confine the paragraph in this way." 21 In CFMEU v Giudice the Full Court's tentative view was "that para (c) [the equivalent of s 19(1)(b)] in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it." 22 The addition of the words "by an employee" in the extant definition confirms, in my view, that the definition is so confined. 23 It is, therefore, necessary to identify work normally performed by the relevant employees and the manner in which it is customarily performed. The duties of the managers include the collection and analysis of information relating to response times of ambulances in their areas. It is not part of their duties to provide such information to persons outside Ambulance Victoria, including reporters and others engaged by media outlets. It cannot, in my opinion, be said that making response time data available to the media, in breach of their contracts of employment, involves the performance of their normal work in a manner different from that in which it is customarily performed. It may be different if their work involved the provision of material to the media through certain approved channels and the employees chose to distribute the information by other means. That is not this case. The fact that the proposed action is contrary to contractual terms which are binding on the employees does not, for that reason, amount to the performance of duty in a manner different from the norm. Rules, policies and contractual provisions which proscribe conduct of certain kinds by employees regulate the conduct of those employees in the course of their employment. They do not impinge directly on the manner in which work is performed. A breach of such a proscription cannot, in my opinion, be regarded as a departure from the customary manner of performance of an employee's work. Were it otherwise, contraventions by employees of policies which prohibit sexual harassment or discrimination of various kinds could be regarded as departures from the customary manner of performance of work and thereby amount to industrial action. 24 In any event, the proposed action in this case cannot, in any relevant sense, be said to result in a restriction or limitation on or a delay in the performance of the employee's normal duties. 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. It should not be assumed or inferred that the proposed action will interfere in any way with the performance of the managers' normal duties. In the course of any shift brief breaks can be and are taken for purposes such as informal conversations with colleagues, toileting and meals. Such breaks do not impinge on the performance of the employee's normal duties. Communication could occur during such times without interference with normal work. It might also occur in the few seconds involved in the dispatch of an e-mail. Like Kaufman SDP, I accept that the position might be different were the proposed conduct to include express provision for a stoppage of work, even for a short period, in order for the managers to distribute data to the media. No such action has been proposed by the AEA. Section 19(1)(a) is, therefore, not engaged. 25 For the same reasons there is no relevant limitation or restriction for the purposes of s 19(1)(b). Furthermore, there is no "ban" for the purpose of that paragraph. As Hollingworth J held in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 105 at [34] the word "contemplates a prohibition on work, rather than a prescription to perform work in a certain way or to achieve a certain result." Action 12 does not include any prohibition on work. RELIEF 26 Ambulance Victoria sought both injunctive and declaratory relief in the event that it persuaded the Court (as it has) that Action 12 is not industrial action within the meaning of the Act. 27 On one view the Court could decline to make any orders on the basis that, if the managers were to engage in the proposed conduct in the light of these published reasons, their action would not be protected by s 415 of the Act and they would potentially be liable for breaches of their contracts, conduct with intent to coerce Ambulance Victoria and, possibly other causes of action. 28 I do not assume that the managers would choose to place themselves in this position and my present inclination is not to grant injunctive relief. My provisional view is that declaratory relief may be appropriate so that both Ambulance Victoria and the managers will be able to order their conduct in a manner that does not involve contraventions of the Act. 29 Yesterday, Ambulance Victoria sought and obtained leave to file an amended application in which it sought interlocutory relief against another form of proposed action by its employees. That action involved inviting members of the media and politicians to accompany them in ambulances during working hours. I understood it to be agreed by the parties that my reasons in dealing with the initial question might also have a bearing on the outcome of the interlocutory application. 30 I will hear the parties on what orders or directions should be made on the application insofar as it has been fully argued and on the interlocutory application once they have had an opportunity of considering these reasons. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 17 October 2014