In Ambulance Victoria v United Voice  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.
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.
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:
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  FWA 4235 and  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.” ( FWAFB 4809 at )
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:
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.
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:
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. On the other hand, the Federal Court in United Firefighters Union v Easy  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):
 See e.g. the majority decision in the ANF case, discussed above; and the decision of Commissioner Bissett in ASU v Lend Lease  FWC 5676 (20 August 2014). It was not contested throughout the Qantas dispute that the pilots’ wearing of red ties was protected action under the FW Act.
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