Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology

[2014] FWC 8809

[2014] FWC 8809

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Health Services Union
v
Clinical Laboratories Pty Ltd T/A Healthscope Pathology
(B2014/1650)

COMMISSIONER HAMPTON ADELAIDE, 12 DECEMBER 2014

Proposed protected action ballot of employees of Clinical Laboratories Pty Ltd T/A Healthscope Pathology – valid application – union genuinely trying to reach an agreement – application opposed on grounds related to form and nature of questions – whether action if implemented would “breach” s.424 of the Act – whether proposed action would be industrial action if taken – whether appropriate at point of PABO to determine effect and legal nature of potential action – s.424 considerations not relevant – PABO requires that questions relate to action that could be industrial action – scope of industrial action considered – whether multiple ballots required for different classes of employees who might have different capacity to take industrial action – ballot question potentially industrial action depending upon who takes the action and how it is notified – application granted.

1. Background

[1] This decision concerns an application by the Health Services Union of Australia (HSU) under s.437 of the Fair Work Act 2009 for a protected action ballot order (PABO). The PABO was sought in relation to negotiations for an enterprise agreement involving various employees of Clinical Laboratories Pty Ltd T/A Healthscope Pathology (Clinical Laboratories).

[2] The group of employees to be balloted are those members of the HSU who are presently covered by the Healthscope Pathology – South Australian Operations Enterprise Agreement 2011. The parties are presently conducting negotiations within the framework of the Act for a new enterprise agreement. The group includes medical scientists, laboratory technicians, couriers and collectors, receptionists and other related classifications.

[3] Clinical Laboratories has opposed the application based upon the form and nature of the questions proposed within the PABO.

[4] The application was initially heard on 3 December 2014, but with the concurrence of both parties, supplementary written submissions were provided given the nature of the objections taken by Clinical Laboratories. Having considered those submissions, I granted the application and issued the PABO. 1 In so doing, I indicated that I would subsequently issue reasons for that decision.

2. The Statutory context

[5] The Act relevantly provides as follows in relation to an application for a PABO:

“436 Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

Subdivision B—Protected action ballot orders

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or
(b) a multi-enterprise agreement.

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and
(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

438 Restriction on when application may be made

(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).

(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.

439 Joint applications

Without limiting section 609, the procedural rules may provide for the following:

(a) how a provision of this Act that applies in relation to an applicant for a protected action ballot order is to apply in relation to joint applicants for such an order;
(b) the joinder, with the consent of each existing applicant, of one or more bargaining representatives to an application for a protected action ballot order;
(c) the withdrawal of one or more applicants from a joint application for a protected action ballot order.

440 Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:

(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.

441 Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.

442 Dealing with multiple applications together

The FWC may deal with 2 or more applications for a protected action ballot order at the same time if:

(a) the applications relate to industrial action by:

(i) employees of the same employer; or
(ii) employees at the same workplace; and

(b) the FWC is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

3. What is not in dispute

[6] It is not in contention that, subject to the objections outlined below, the HSU:

● Is a bargaining representative and is entitled to make this application;
● Has made a proper application as required by the Act and has met the documentary and notice requirements for the application; and
● Is not prevented from bringing the application by virtue of s.438 of the Act given the nominal expiry of the current enterprise agreement applying to the parties.

[7] Clinical Laboratories has also accepted that the HSU has been genuinely trying to reach an agreement as required by s.443(1)(b) of the Act.

[8] I also note that Clinical Laboratories did not seek an extended period of notice as contemplated by s.443(5) of the Act.

4. The proposed ballot questions

[9] The objections raised by Clinical Laboratories arise from the form and nature of the ballot questions that have been proposed by the HSU.

[10] The ballot questions are as follows:

“In support of reaching an enterprise agreement with your employer, do you support and authorise the taking of protected industrial actions, which may involve taking separately, concurrently and/or consecutively, in the form of:

1. Indefinite or periodic industrial action in the form of answering phone calls with a union message?

Yes [ ] No [ ]

2. Indefinite or periodic industrial action in the form of placing a statement on all outgoing emails about the proposed Enterprise Agreement claim, actions and the union members’ case for a fair Enterprise Agreement?

Yes [ ] No [ ]

3. Indefinite or periodic industrial action in the form of a statement added to reports regarding the proposed Enterprise Agreement claim, actions and the union members’ case for a fair Enterprise Agreement?

Yes [ ] No [ ]

4. Indefinite or periodic industrial action in the form of wearing union material such as, but not limited to, clothes, badges and/or stickers?

Yes [ ] No [ ]

5. Indefinite or periodic industrial action in the form of attending public events in support of the union campaign, including, but not limited to, morning and afternoon tea events, and lunch time rallies?

Yes [ ] No [ ]

6. Indefinite or periodic industrial action in the form of displaying in the workplace union material such as, but not limited to, balloons, posters and/or stickers?

Yes [ ] No [ ]

7. Indefinite or periodic industrial action in the form of providing information to visitors, clients, patients, media, other health professionals and/or the general community of union members Enterprise Agreement claim and /or actions and the union members case for a fair Enterprise Agreement?

Yes [ ] No [ ]

8. Indefinite or periodic industrial action in the form of the inclusion of union material to Healthscope’s signs at the front of patient centres such as, but not limited to, balloons?

Yes [ ] No [ ]

9. Indefinite or periodic industrial action in the form of asking visitors, patients, clients and/or the general public to sign a petition in support of the union campaign?

Yes [ ] No [ ]

10. Individual or consecutive stop work meetings each of between five (5) minutes and twenty four (24) hours?

Yes [ ] No [ ]

11. Indefinite or periodic industrial action in the form of delaying and/or limitations placed on non-urgent/non-critical release of reports and results?

Yes [ ] No [ ]

12. Indefinite or periodic industrial action in the form of delays and/or limitations on non-urgent/non-critical testing?

Yes [ ] No [ ]

13. Indefinite or periodic industrial action in the form of a ban on performing higher duties unless backfilled?

Yes [ ] No [ ]

14. Indefinite or periodic industrial action in the form of a ban on doing non-urgent over flow work from interstate?

Yes [ ] No [ ]

15. Indefinite or periodic industrial action in the form of a ban on following up unlabelled or mislabelled specimens on the same day as received?

Yes [ ] No [ ]

16. Indefinite or periodic industrial action in the form of a ban on releasing non-critical un-validated results in Biochemistry?

Yes [ ] No [ ]

17. Indefinite or periodic industrial action in the form of a ban on complying with direction to perform duties outside of those explicitly required by the Job/Position Description as they were at the time of this order?

Yes [ ] No [ ]

18. Indefinite or periodic industrial action in the form of a ban on complying with roster changes with less than 14 days’ notice?

Yes [ ] No [ ]

19. Indefinite or periodic industrial action in the form of a ban on training and/or student placement?

Yes [ ] No [ ]

20. Indefinite or periodic industrial action in the form of a ban on taking annual leave that has been requested by management?

Yes [ ] No [ ]

21. Indefinite or periodic industrial action in the form of a ban on overdue phone calls in Biochemistry?

Yes [ ] No [ ]

22. Indefinite or periodic industrial action in the form of a ban on performance of non-clinical/non-scientific duties?

Yes [ ] No [ ]

23. Indefinite or periodic industrial action in the form of a ban on relieving staff engaged in taking protected industrial action?

Yes [ ] No [ ]

24. Indefinite or periodic industrial action in the form of placing union material on couriers cars including but not limited to stickers?

Yes [ ] No [ ]

25. Indefinite or periodic industrial action in the form of a ban on unpaid work?

Yes [ ] No [ ]

26. Indefinite or periodic industrial action in the form of taking all tea breaks and lunch breaks in full as provided for in the Enterprise Agreement?

Yes [ ] No [ ]

27. Indefinite or periodic industrial action in the form of withholding of non-critical results in Haematology for between one (1) and twenty four (24) hours?

Yes [ ] No [ ]

28. Indefinite or periodic industrial action in the form of not prioritising contracted/private non-critical work in Haematology?

Yes [ ] No [ ]

29. Indefinite or periodic industrial action in the form of delaying overdue lists in Microbiology?

Yes [ ] No [ ]

30. Indefinite or periodic industrial action in the form of delaying of non-urgent final results in Microbiology for up to 24 hours?

Yes [ ] No [ ]

31. Indefinite or periodic industrial action in the form of bulk billing of all patients in Ashford Lab?

Yes [ ] No [ ]

32. Indefinite or periodic industrial action in the form of all work performed outside of contracted hours and without an agreement to the contrary being claimed as overtime?

Yes [ ] No [ ]

33. Indefinite or periodic industrial action in the form of a ban on part-time employees agreeing to vary the terms of their employment contract as set out in Clause 15 (b) of the enterprise agreement?

Yes [ ] No [ ]”

5. The objections made by Clinical Laboratories and the position of the HSU

[11] Clinical Laboratories contended that the PABO should not be issued in the form proposed by the HSU. In particular, it contended that various forms of the proposed “protected industrial action” should not be included on two grounds.

[12] Firstly, that some forms of action may have significant “adverse health consequences” and be “in breach” of s.424 of the Act. Secondly, that many of the questions related to action that did not fall within the meaning of “industrial action” as provided by s.19 of the Act.

[13] In relation to the first ground relating to the effect of the proposed action, Clinical Laboratories contended 2 as follows:

● Clinical Laboratories acknowledges that protected industrial action is not imminent at this time;
● However, Clinical Laboratories expresses significant concern that if various forms of proposed protected industrial action, as contemplated by the HSU application, were implemented, then such action may have significant adverse health consequences and may be in breach of s.424 of the Act;
● Furthermore, this action may be in breach of clinical standards, polices and/or procedures imposed on Clinical Laboratories via clinical statutory regulation;
● Clinical Laboratories submits that the most appropriate time to ensure that the various forms of proposed protected industrial action do not contravene the Act, and especially s.424, is prior to the terms of a protected action ballot being formulated; per Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union[2013] FWCFB 3793 at [47] and CEVA Logistics (Australia) Pty Ltd v National Union of Workers[2014] FWC 1948 at [47] ; and
● Based on the acute nature of the diagnostic medical pathology services provided by Clinical Laboratories, it is submitted that several forms of proposed protected industrial action in the application present a clear and present danger to life, personal safety, health and/or welfare.

[14] Clinical Laboratories also foreshadowed that if this proposition was accepted, it would seek a further opportunity to provide cogent evidence to the Commission associated with the nature of the acute diagnostic medical pathology services provided and how various forms of proposed protected industrial action may have significant adverse health consequences and thereby contravene s.424 of the Act.

[15] In relation to the scope of the proposed action, Clinical Laboratories contended as follows:

● Various forms of proposed action are outside the scope of “industrial action” pursuant to s.19 of the Act. These forms of proposed action, firstly cannot form part of a protected action ballot, and secondly, they could not subsequently be regarded as protected industrial action for the purposes of s.415 of the Act;
● In considering the scope of the definition of “industrial action” in the Act, the Federal Court in Ambulance Victoria v United Voice [2014] FCA 1119 (Ambulance Victoria) found in effect that where a contemplated action or activity is outside the scope of “…work normally performed by relevant employees…” then it cannot be regarded as “industrial action” for all purposes contemplated by the Act; and
● Although the Commission, as a non-judicial body, is not formally bound by the principles of stare decisis, it is understood that as a matter of policy and practice the Commission generally adopts practices in line with this legal concept (National Union of Workers[2012] FWA 7212).

[16] Clinical Laboratories also contended that as a result of s.443 and s.437 of the Act, the Commission is limited to ordering a protected action ballot with respect to action within the definition of “industrial action”.

[17] It further contended that various forms of proposed action in the HSU application are outside the definition of “industrial action” as conceived in Ambulance Victoria for either all categories of employees, or in some cases, some categories of the employees making up the group of employees to be balloted.

[18] Clinical Laboratories provided a table of the forms of proposed action in the HSU application that would fall outside of the scope of industrial action and this involved a challenge to questions 6, 7, 8, 9 and 24 for all employees and questions 3, 11, 12, 14, 15, 16, 21, 22, 24, 27, 28, 29, 30, 31 and 33 for various classes of employees.

[19] I understand that this table was prepared to reflect the view of Clinical Laboratories that the nature of the action would not fall within the scope of work normally performed by the relevant employees.

[20] In that light, Clinical Laboratories sought that those forms of proposed action that are outside the definition of “industrial action” for all categories of employees be removed from the PABO. In addition, Clinical Laboratories sought that in relation to those forms of proposed action that are only within the definition of “industrial action” for some categories of employees, the Commission should only make a PABO relevant to those particular employees.

[21] Finally, Clinical Laboratories contended that if the HSU wished to persist with the current ballot questions, then it would appear necessary for the HSU to make application for separate protected action ballots to ensure that the questions put to the various categories of employees were limited to actions within the definition of “industrial action” for each of the respective categories of employees.

[22] The HSU contended that neither objection was validly made as part of a PABO application and that the proposed questions were appropriate. In relation to the objections based upon the effect of the proposed action, the HSU contended that this was premature and that when taking action, the union and its members would be mindful of the public health risks of any action. Further, and in any event, the issue of s.424 was a matter to be taken up when and if protected industrial action was notified.

[23] In relation to the scope of the proposed action, the HSU contended that the submission that not all employees can undertake the specific action was “spurious at best”. It further contended that there are no provisions under the Act that purported to require that industrial action is only industrial action if each and every employee of the employer is capable of undertaking the action. That is, nothing under either the definition at s.19, or the provisions under s.437, mandates that every employee must be capable of undertaking every form of industrial action for it to constitute industrial action; let alone a valid question in the context of the question to be asked in the ballot for the purposes of defining what industrial action, if any, members are prepared to undertake.

[24] The HSU argued that the prerequisites of making an application under s.437 only provide for information about the construction of the questions and the group or groups of people to be balloted. Both of these matters were to be determined in the context of requiring clarity of such sufficiency as to enable the ballot to be conducted and the voters to understand the question being asked.

[25] The HSU also contended that the approach adopted in various decisions of the Commission did not require that the question of whether proposed action was industrial action to be determined at the point of PABO.

[26] The HSU acknowledged that the recent decision in Ambulance Victoria “differentiated the question of the provision of response time data to the media very specifically on the basis of the actual work performed by a specified group of employees described in the notice advising of the commencement of industrial action”. 3 However, it contended that the decision related to the commencement of industrial action as notified to Ambulance Victoria. This, it argued, was not a decision concerning the detail of a ballot question and the different context was said to be very important.

[27] The HSU contended that as the prerequisites under s.437 had been met, the terms of s.443 of the Act required the Commission to grant the application and make an order for a ballot to be conducted.

6. Consideration

6.1 The role of the Commission in a PABO application

[28] The role of the PABO, and consequently the role of the Commission in considering any such application, is established by the terms of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action in support of bargaining for a single enterprise agreement.

[29] The PABO is part of the bargaining regime of the Act. The scheme of the Act is outlined in various decisions of the Commission including in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union[2010] FWAFB 526 and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53.

[30] Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot, 4 whether the action is notified in accordance with the requirements of the Act,5 and whether it is industrial action within the meaning of the Act.6 Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal safety or health, or the welfare, of the population or of part of it or causes significant damage to the Australian economy or an important part of it.7 Further, action that is not protected industrial action may be prevented.8

[31] In terms of the PABO application itself, the Act establishes the relevant requirements in s.437, s.438 and s.443. Beyond those matters that are not in dispute in this case, these requirements include that the PABO must state the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. 9

[32] This requirement has been held by the Commission to mean as follows:

“[19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.” 10

[33] In Total Marine Services Pty Ltd v The Maritime Union of Australia[2009] FWAFB 368, the Full Bench also found:

“[38] The further ground of appeal relates to the nature of the questions asked. Commissioner Thatcher concluded that the questions asked in the ballot are sufficient to enable employees to understand the nature of the protected action they will be asked to authorise. We believe he was correct in that view.

[39] TMS is critical of the use of the term ‘unlimited’ in relation to the particular forms of industrial action. The precise length of any action will be determined subsequently by the bargaining agent who organises the action and the members of the union who choose to participate. It is inevitable that the precise timing and length of the action is not determined at the stage of authorisation. But in voting to authorise the action the employees would have no doubt of the outer limits of the action involved. In our view the requirements for an application are satisfied.”

[34] The HSU has contended that it is not necessary for the Commission to even consider whether the proposed questions may be industrial action (as defined) at the PABO application stage. Although this requirement is not expressly stated, it is a necessary implication of the provisions. That is, the questions must be about industrial action and this is a defined term. In addition, some of the decisions relied upon by the HSU, including John Holland, were expressly dealing with that issue as part of a PABO application.

[35] Accordingly, it is necessary to find that the questions concern action that at least has the potential to be industrial action if taken by all or some of the group of employees being balloted.

[36] I would note however, that it is not the role of the Commission, at least at the PABO application stage, to assess whether the proposed industrial action would be appropriate or reasonable in the circumstances. It is also not the role of the Commission, provided that the questions are capable of being understood and answered, to consider whether asking such a long series of questions as is proposed in this case, is desirable. As indicated in John Holland, any risks associated with the drafting of the questions are at least initially taken by the bargaining representative making the application.

6.2 The potential effect of the proposed “industrial action”

[37] Clinical Laboratories relies squarely on the provisions of s.424 of the Act to impugn the ballot questions.

[38] Section 424 is part of the provisions of the Act that permits, what would otherwise be protected industrial action, to be suspended or terminated by the Commission on certain defined grounds. The Act provides as follows:

“424 FWC must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or
(b) is threatened, impending or probable;

if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.

(2) The FWC may make the order:

(a) on its own initiative; or
(b) on application by any of the following:

(i) a bargaining representative for the agreement;
(ii) the Minister;
(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;
(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;
(iii) a person prescribed by the regulations.”

[39] I accept on face value, that given the nature of the work undertaken by the particular group of employees, issues may well arise as to the impact of certain industrial action upon life, health, safety or welfare of the population of part of the population.

[40] However, the potential for the action contemplated by the ballot questions to have such an effect is not a relevant consideration at this point. It does not arise, either directly or indirectly, from the statutory requirements for the granting of a PABO. The decisions cited by Clinical Laboratories do not stand for the proposition claimed and in any event, it is not feasible or appropriate to make an assessment as to whether any proposed industrial action might breach s.424 at this stage because:

● The ballot is yet to be conducted and the relevant questions may not be supported by a majority of the employee group;
● The ballot question if supported, in effect, establishes the outer boundary for what might be protected industrial action and the actual threatened, probable or actual industrial action will depend upon what action is actually notified; and
● Whether any such action as notified would have the effect contemplated by s.424 will also depend upon precisely what action is notified, how many employees are involved, the extent and duration of the action, and the impact of the action.

[41] At this point, no protected industrial action is threatened, impending, probable or being engaged in. 11 Section 424 is simply not yet engaged.

[42] For these reasons, it is not necessary or appropriate to attempt to assess the potential impact of the proposed ballot questions at this juncture. It was also not necessary or appropriate to permit Clinical Laboratories to provide evidence about the potential impact of the action at this stage. The employer is of course at liberty to bring a s.424 application when and if the circumstances warrant, and its concerns in that regard would by now be well known to the HSU.

6.3 The scope of the proposed “industrial action”

[43] I have earlier indicated my view that it is necessary to find that the questions concern action that at least has the potential to be industrial action if taken by all or some of the group of employees being balloted.

[44] I accept on face value that the scope of normal work varies according to the different roles of the employees within the group. This may then have some impact on the capacity of the different employees to take industrial action within the meaning of the Act. However, the Act contemplates a group of employees endorsing the taking of industrial action that might ultimately become protected industrial action depending upon the range of statutory requirements outlined earlier in this decision.

[45] I do not consider that the Act requires that each form of proposed action clearly be available to each of the employees within the group who participate in the ballot. There is no express requirement to that end and it does not arise by necessary implication. Further, the range of circumstances under which the action might become industrial action, as discussed below, makes that assessment at this point problematic. Accordingly, those questions where it is contended that only some employees could take industrial action meet the statutory requirement for inclusion in the PABO.

[46] This then leaves the consideration of certain questions that are said to fall outside of the scope of industrial action for all employees.

[47] These are concerned with the following:

● Industrial action in the form of displaying union material in the workplace – question 6;
● Industrial action in the form of providing information to visitors, clients, patients, media, other health professionals and/or the general community about union members’ Enterprise Agreement claims and/or actions and the union members’ case for a fair Enterprise Agreement – question 7;
● Industrial action in the form of the inclusion of union material to Healthscope’s signs at the front of patient centres – question 8;
● Industrial action in the form of asking visitors, patients, clients and/or the general public to sign a petition in support of the union campaign – question 9; and
● Industrial action in the form of placing union material on courier cars – question 24.

[48] Section 19 of the Act defines industrial action in the following terms:

“19 Meaning of industrial action

(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.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

[49] The Federal Court in Ambulance Victoria was dealing with an application for an injunction and needed to consider whether the action being proposed or taken by the AEA was protected industrial action within the meaning of s.408 of the Act. Tracey J set out the recent approach taken to the meaning of industrial action by the Commission in the following terms:

“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).”

[50] Tracey J in effect found that the approach of the majority in ANF v Mornington was stated too broadly. His Honour also recognised the different context created by a PABO application and, in effect, endorsed the minority view of Kaufman SDP in the following terms:

“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 Ltdv 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 “contemplatesa 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.”

[51] The issue and scope of industrial action in similar contexts has been widely considered. It is evident that both the purpose and context is relevant to the proper characterisation of conduct for present purposes.

[52] The legislative note to the definition of industrial action in s.19(1) of the Act refers to the decision of a Full Bench of the Australian Industrial Relations Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited 12and says that in that case the Commission ‘considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining’.

[53] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Another v Laing, 13 the Federal Court was dealing with the meaning of industrial action under former Workplace Relations Act 1996 in the context of an application to suspend or terminate industrial action. French J found:

“Notwithstanding these limitations, it has been said, and in my opinion correctly, that for the purposes of s 127 “industrial action” is widely defined Coal and Allied Operations Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industrial Union (1997) 73 IR 311 at 121 (AIRC Full Bench). It extends to conduct by way of communication. While para (a) of the definition relates to the “performance of work”, para (b) is more broadly expressed. It refers to “a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work...”. The central meaning of the term “ban” in the industrial, as in its ordinary, usage is to “prohibit or interdict”: Macquarie Dictionary. Communication between persons or an organisation and persons is essential to a “ban”. And while the notion of “limitation” or “restriction” may have a meaning related to manner of actual performance of work, that meaning is picked up in para (a) of the definition. Under para (b) it extends to the communication of a limitation or restriction. Communication picked up under paras (b) and (c) must no doubt purport to be at least hortatory, if not authoritative and binding, upon the person or persons to whom they are directed.

In the ordinary course of such communication will be verbal whether oral, written or in electronic form. Being intended to affect or affecting the performance of work it is industrial action because of its instrumental character. Notwithstanding that it is communication it falls within the terms of the definition.

So communication can be industrial action. And industrial action, verbal or non-verbal, can be communication in a wider sense. The withdrawal of labour because of an industrial dispute may be seen as a signal from employee to employer of a grievance or as underlining, from the employee’s perspective, the seriousness of a grievance which has been communicated verbally. To say that industrial action sends a signal to the employer or communicates in this sense is not to take it out of the class of conduct to which s 127 implies.”

[54] These observations remain apposite but must of course be considered within the particular statutory definition of industrial action applying at that time.

[55] In light of the decision of the Court in Ambulance Victoria some of the proposed action may not be industrial action as defined. However, as indicted in that decision, this would depend upon whether the proposed action involved the employees concerned undertaking that action in a manner that resulted in a restriction, limitation or delay in the performance of the employee’s normal duties. There is little material before the Commission that would enable detailed findings to be made.

[56] In any event, the questions stated in the ballot contemplate the action being (notified) and taken separately, concurrently and/or consecutively. If some of the proposed action was taken separately, it might well be problematic in terms of whether it would fall within the scope of industrial action, depending upon the circumstances of the employees concerned. However, if taken concurrently with the stoppage, delay or limitation of the normal performance of work, the result may well be different. The potential for “industrial action” to be taken in such a manner was specifically recognised in Ambulance Victoria at [24].

[57] As a result, there is potential, depending upon who, how and when the proposed action is taken, for the various forms of action contemplated in the PABO to fall within the scope of industrial action as contemplated in Ambulance Victoria.

[58] Given the present role of the Commission, the particular circumstances of this matter and the variables and considerations associated with whether the proposed action might ultimately fall within the scope of s.19 of the Act, it was not appropriate to hear evidence about these matters at this point.

[59] On that basis, I found on balance that the questions as proposed were capable of inclusion as part of a PABO in the present context.

[60] I also note that depending upon the variables and circumstances outlined above, some of the proposed action may be problematic in terms of being industrial action within the meaning of the Act. If it is supported by the ballot and notified, but ultimately found not to be industrial action when considered in context, it would not be protected industrial action within the meaning of the Act.

[61] That is a matter for later consideration if the circumstances arise and Clinical Laboratories has clearly put the HSU on notice about that prospect.

7. Conclusions

[62] I found that the statutory requirements of s.443 had been met and that the proposed PABO was in order.

[63] Accordingly, I was obliged to, 14 and did, issue the PABO on 8 December 2014.

Appearances:

G Navas with P Inglis of the Health Services Union of Australia.

D Twyford with A Landgren of Clinical Laboratories Pty Ltd T/A Healthscope Pathology.

Hearing details:

2014

Adelaide

3 December.

Final written submissions:

Clinical Laboratories Pty Ltd T/A Healthscope Pathology:

4 December 2014.

Heath Services Union:

5 December 2014.

 1   PR558571.

 2   Written submissions 4 December 2014.

 3   Written submissions 5 December 2014.

 4 Section 437, s.408 and s.409 of the Act.

 5   Section 414 of the Act.

 6   Section 19 of the Act.

 7   Section 424 of the Act.

 8   Section 418 of the Act.

 9   Section 443(3)(d) of the Act.

 10  John Holland Pty Ltd v AMWU[2010] FWAFB 526.

 11   Minda Incorporated v Liquor, Hospitality and Miscellaneous Union[2010] FWA 3217 at [78] to [81].

 12   PR946290.

 13   (1998) 159 AlR 73.

 14   Section 443(1) of the Act.

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