Baptcare Ltd v Australian Nursing and Midwifery Federation
[2024] FWC 3485
•13 DECEMBER 2024
| [2024] FWC 3485 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418—Industrial action
Baptcare Ltd
v
Australian Nursing and Midwifery Federation
(C2024/8954)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 13 DECEMBER 2024 |
Application for orders under s 418 – application dismissed
Earlier today, for reasons given on transcript, I dismissed an application made by Baptcare Ltd (Baptcare) under s 418 of the Fair Work Act 2009 (Act) for orders that unprotected industrial action stop or not occur and that it not be organised. I advised the parties that I would issue a written decision recording my reasons.
In its application, Baptcare contended that unprotected industrial action had been taken by two of its employees, and that further such action was threatened to be taken by other employees. It contended that the Australian Nursing and Midwifery Federation (ANMF) had been and was organising the unprotected industrial action. Baptcare said that the industrial action that had been taken and that was threatened was unprotected because it was not authorised by the protected action ballot order (PABO) issued by Commissioner Connolly on 15 November 2024 and was not covered by the notice of industrial action given to Baptcare by the ANMF under s 414 of the Act on 6 December 2024. The s 414 notice stated that from 12 December 2024, employees would, among other things, stop work for up to 10 minutes on each occasion to distribute ANMF campaign material to clients, families, visitors and members of the public, and to explain the reasons for the campaign.
Baptcare said that from 6 to 10 December 2024, its manager, Sue Baker, sought assurances from the ANMF that during the periods when employees stopped work to distribute materials they would leave the premises of the workplace, due to what Baptcare described in its application as ‘health and safety concerns in general, and WorkCover coverage.’ Baptcare said that in the course of these discussions, Kirrily Bucket, the ANMF’s industrial officer, indicated that employees would remain on site, and also that they would take ‘action’ during their unpaid meal breaks, which are longer than 10 minutes. Baptcare submitted that such action was not covered by the PABO or the s 414 notice.
Baptcare said that on 11 December 2024, two off duty employees entered the premises, without following required safety protocols, and proceeded to hand out badges and materials to employees, and that when they were asked to stop, the two employees responded that the union had told them that they could do this. Baptcare said that the two employees had disrupted other employees’ work.
Baptcare contends that the conduct of the two off duty employees was unprotected industrial action because it was not conduct that fell within the description of the industrial action in the ANMF’s s 414 notice and was not authorised by the PABO. It contended that the statements by the two employees that the ANMF had told them that they could engage in the conduct demonstrated that the ANMF was advising employees to take industrial action that was not covered by the s 414 notice, and that this was consistent with the ANMF’s statement to Ms Baker that employees would take action during their breaks, which was also not covered by the notice. Baptcare contended that the Commission should order that the unprotected industrial action stop, not occur, and not be organised by the ANMF.
Section 418 provides that, if it appears to the Commission that unprotected industrial action is happening, threatened, impending or probable, or is being organised, it must make an order that the industrial action stop, not occur or not be organised.
‘Industrial action’ is defined in s 19 of the Act, which states:
‘(1) Industrial action means action of any 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) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.’
Although s 418 is concerned with whether ‘it appears’ to the Commission that unprotected industrial action is happening, threatened, impending or probable, I am able to determinate this application on the basis of categorical conclusions, which are as follows.
First, the conduct of the two employees was not industrial action. Their conduct did not fall within s 19. They were off duty. They were not performing work in a manner different from that in which it is customarily performed. There was no practice in relation to work by the employees which resulted in a restriction or limitation on, or a delay in the performance of work. There was no ban or limitation etc on the performance of work. Nor was there a failure to attend for work. There was no work at all.
Baptcare said that there was work, namely that performed by other employees, and that because the two employees had disrupted some of those other employees, their action fell within ss 19(a) and (b): the two employees had limited or restricted the other employees in the performance of their work. I reject this contention. These provisions are concerned with practices, bans, limitations and restrictions imposed by employees on their own work, not that of another employee. It is well-settled that off duty employees who attend an obstructive picket that prevents other workers from performing work do not thereby engage in industrial action; there is no ban or limitation or restriction on their own work. In any event, I am not persuaded that the two employees did disrupt other workers. Baptcare made various conclusory statements to the effect that the conduct was disruptive. The ANMF denied that this had been the case. No witness evidence was led. The only detail referred to by Baptcare was that some employees did not want to take badges and materials that were being distributed by the two employees, that the two employees remained on site for 25 minutes, and that they were asked by the second in charge of the facility to cease handing out the materials. There is no basis to conclude that the two employees limited or restricted the work of other employees.
Secondly, it follows that the ANMF’s advice to the two employees that they can hand out badges and campaign materials while they are off duty was not and is not the organisation of industrial action.
Thirdly, if members of the ANMF distribute materials during their breaks, this will not be industrial action, because again it does not fall within the definition in s 19 of the Act, and therefore any advice given by the ANMF to its members that they may engage in such conduct does not amount to organising unprotected industrial action. I would add that it is doubtful in any event that a union could be said to be organising industrial action simply by providing legal advice to its members.
The s 414 notice contemplated stoppages of work for up to 10 minutes to distribute materials. This action has not yet occurred but if it is taken, it will be industrial action because it involves a ban or limitation on the performance of work. If the action is consistent with the s 414 notice, and if the common requirements in s 413 are met, it will be protected. But if distribution of campaign material occurs during breaks, this will not involve a stoppage of work or otherwise fall within the definition of industrial action in s 19 of the Act.
Baptcare submitted that the conduct of the ANMF was contrary to the good faith bargaining requirements in s 228 of the Act. But this is not relevant to an application under s 418. If Baptcare wishes to seek bargaining orders under s 229, it can make an application pursuant to that section, after having sent the ANMF a ‘concerns’ letter as required by s 229(4).
Baptcare said that the conduct of the two employees contravened its policies. If that is the case, it can consider a disciplinary response.
Finally, Baptcare stated in its application that it had deducted 4 hours of pay from the wages of the two employees. There was no basis to do this as the employees did not take industrial action. Section 474 of the Act, which concerns payments to employees in respect of unprotected industrial action, and which prescribes a minimum non-payment period of four hours, was therefore not engaged. I have no power under s 418 or any other provision of the Act to order that Baptcare pay the two employees their full usual wages for the day in question, but it is clear that this is what Baptcare should do.
Conclusion
The application for orders under s 418 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
S. Baker for the applicant
K. Buckett for the respondent
Hearing details:
2024
Melbourne (by Microsoft Teams)
13 December
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