Integrated Clinical Oncology Network Pty Ltd T/A Icon Cancer Centre v United Workers' Union
[2024] FWC 1068
•23 APRIL 2024
| [2024] FWC 1068 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418—Industrial action
Integrated Clinical Oncology Network Pty Ltd T/A Icon Cancer Centre
v
United Workers’ Union
(C2024/2512)
| COMMISSIONER HUNT | BRISBANE, 23 APRIL 2024 |
Alleged unprotected industrial action at Integrated Clinical Oncology Network Pty Ltd T/A Icon Cancer Centre.
An application for an order under s.418 of the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) at 6:19pm on 22 April 2024 by Integrated Clinical Oncology Network Pty Ltd T/A Icon Cancer Centre (Icon). The application was accompanied by an unsigned statement of Ms Samantha Douglas, Executive Manager, People and Capability. A signed copy of the statement was filed in the Commission on 23 April 2024.
Icon made the application in respect of notified prospective industrial action of the United Workers’ Union (UWU) and its members in respect of Radiation Therapists employed at its Queensland cancer centres who are to be covered by a proposed new enterprise agreement. Icon asserted that some of the notified prospective industrial action – eight items – due to commence from 5:00am on 24 April 2024, is not protected industrial action.
Hearing
On 23 April 2024, I listed the application for hearing at 4:00pm, noting the Act’s requirement to urgently deal with s.418 applications.
A hearing was conducted by way of Microsoft Teams. Mr Troy Spence of Counsel was granted leave to appear for Icon, instructed by Mr Johan Myburgh of Ai Group Workplace Lawyers. Ms Douglas gave evidence and was cross-examined. Mr Alec Nash, Senior Industrial Officer appeared for the UWU, together with Mr James McCall, Organiser.
Legislative context
Section 418 provides:
“418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
The meaning of industrial action is contained at s.19 of the Act:
“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).”
Icon’s submissions
Icon submitted that the threatened industrial action is not protected industrial action within the meaning of s.408(a) of the Act, on the basis that the notice does not comply with the notice requirements under s.414(6) of the Act in relation to eight of the threatened employee claim actions. Namely, it was submitted that the notified actions lack specificity and are ambiguous, and do not provide Icon the opportunity to respond to the action.
Icon asserted that it is apparent that unprotected industrial action is threatened, and or, being organised by the UWU, and as a consequence, the Commission must make orders that the industrial action not occur; and/or in the alternative, the industrial action not be organised.
Icon operates more than 35 Cancer Care Centres (CCC) across Australia. In Queensland, the CCC’s deliver a mix of radiation therapy, chemotherapy and blood disorder treatment for patients living in metropolitan, outer-metro and regional communities, including service delivery on behalf of Queensland Health for remote and indigenous communities.
On 7 September 2023, Icon issued a Notice of Employee Representational Rights (NERR) for a single-enterprise agreement, intended to be called the Icon Group Radiation Therapist Enterprise Agreement – Queensland 2024 (the Proposed Agreement), which is proposed to cover employees covered in the classifications of the enterprise agreement whose primary work location is based in Queensland and are employed as Radiation Therapists at an Icon Cancer Centre, or providing Radiation Therapy Planning or Clinical Support to Icon Cancer Centre.
On 18 March 2024, the Commission issued a Protected Action Ballot Order (PABO) in PR772439, the application having been made by the UWU. On 12 April 2024, the ballot agent declared the ballot result with members of the UWU voting overwhelmingly to approve the industrial action posed in the order.
On 16 April 2024, the UWU gave written notice (Notice) that its members would commence industrial action on 24 April 2024, communicating:
“In accordance with s 414 of the Fair Work Act 2009 (Cth), the United Workers’ Union (‘UWU’) gives notice that its members employed by Integration [sic.] Clinical Oncology Network PTY Limited (ICON) performing work at ICON worksites as stated below, will engage in industrial action of the following nature:
1. Unlimited stoppages of work of up to 1 hour duration for the purposes of speaking to the employer’s customers, their families, and/or other members of the public about the reasons for the industrial action commencing indefinitely from 5:00am 24 April 2024.
1.1. For clarity, these stoppages will only involve speaking to the employer’s customers and/or their families (not other members of the public) and will be undertaken either prior to, or at the conclusion of an appointment providing services and/or treatment to the employer’s customers for a maximum of 5 minutes per individual stoppage.
2. Unlimited stoppages of work of up to 1 hour duration for the purposes of distributing printed material to the employer’s customers, their families, and/or other members of the public about the reasons for the industrial action commencing indefinitely from 5:00am 24 April 2024;
2.1. For clarity, these stoppages will only involve distributing printed material to the employer’s customers and/or their families in the course of and in conjunction with the actions described in 1.1.
3. An indefinite ban on the performance of work without union campaign clothing worn over or instead of Icon Cancer Centre's uniform (excluding any required personal protective equipment) commencing from 5:00am 24 April 2024;
4. An indefinite ban on the performance of work without using an email signature containing part or all of campaign messaging being “Not so Iconic” and/or “Close the private-public pay gap” commencing from 5:00am 24 April 2024;
5. An indefinite ban on capturing or recording treatment, imaging, and planning related Medicare codes commencing from 5:00am 24 April 2024;
…
7. An indefinite ban on completing any Litmos courses or training commencing from 5:00am 24 April 2024;
8. An indefinite ban on setting up an out of office response automatic reply without the inclusion of the United Workers Union logo/branding and campaign messaging being “Not so Iconic” and/or “Close the private-public pay gap” commencing from 5:00am 24 April 2024;
9. An indefinite ban on scheduling work commencing from 5:00am 24 April 2024…”
The employee claim actions set out above will be referred to throughout this decision as ECA1, ECA2 etc.
The action is threatened to occur at 12 of Icon’s CCC’s across Queensland.
On 19 April 2024, correspondence was sent to the UWU notifying Icon’s concerns in respect of the above eight items, requesting the UWU withdraw the Notice by close of business on 22 April 2024.
On 22 April 2024 at 4.10pm, the UWU informed Icon that it would not be withdrawing the Notice.
Notice must specify the nature of the action
Icon submitted that the UWU has not complied with the notice requirement pursuant to s.414(6) of the Act. Sections 414(1) and (6) are set out below:
“414 Notice requirements for industrial action
Notice requirements -- employee claim action
(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.
…
Notice requirements--content
(6) A notice given under this section must specify the nature of the action and the day on which it will start.”
To be compliant with s.414(6) of the Act, Icon submitted that the UWU’s Notice must contain a sufficiently detailed description of the nature of the action, to put Icon in a position to make reasonable preparations to deal with the effect of the industrial action.
In Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2009) 190 IR 342 (‘Telstra’), the Full Bench of the Commission said the following (at [12] to [13]):
“[12] Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. The first point to note is that the obligations in ss.414(1) and (6) are not cast in terms of an intention to take industrial action but in more positive terms. This is a point of contrast with the language of s.170MO of the WR Act, exemplified by s.170MO(5) which we have set out above. The second point is that in considering whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking. As to purpose, there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action. The following passage from the reasons for decision in David’s Distribution Pty Ltd v National Union of Workers, a case concerned with the interpretation of s.170MO(5), is apposite:
‘[87] We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shutdown. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shutdown during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees.’ (citations omitted)
[13] In considering the adequacy of the notice in this case, the relevant context is that Telstra employs around 34,000 employees in hundreds of work locations throughout Australia. While the evidence does not indicate the number of employees who are members of the CEPU, it is well known that there are many CEPU members and no doubt Telstra would have some idea of at least the areas in which CEPU membership is likely. It is obvious that the potential effect on Telstra’s operations of industrial action by CEPU employees could be very significant.” (emphasis added)
In Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 233 IR 223 (‘Yallourn’), the Full Bench considered a number of relevant authorities regarding the interpretation of s.414(6) of the Act (at [36] to [47]), including Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd (2010) 190 FCR 581.
Meaning of ‘ban’
Icon’s contention with a number of the notified actions - ECA3, ECA4, ECA5, ECA7, ECA8 and ECA9 – is that they all variously notify that there will be an “indefinite ban” regarding the performance of work.
In EnergyAustralia v Construction, Forestry, Mining and Energy Union [2013] VSC 105 (‘EnergyAustralia’), Hollingworth J considered the term “ban” within the meaning of s.19 of the Act, saying the following (at [34] to [39]):
“34. I agree with EnergyAustralia that the word “ban” contemplates a prohibition on work, rather than a prescription to perform work in a certain way or to achieve a certain result. That is the plain meaning of the word, as well as being supported by authority.
35. “Ban” is not a term which is defined by the Act. However, the construction contended for by EnergyAustralia is consistent with the definition of ‘industrial action’ in s 19(1) of the Act:
‘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.’
36. That definition draws a distinction between the concept of a ban, and the concept of performing work differently from the usual manner.
37. In Williams v Construction, Forestry, Mining and Energy Union, Jessup J considered whether the workers had engaged in a “ban, limitation or restriction” on the performance of their work, within the meaning of s 19(1)(b). His Honour referred with approval to what a Full Bench of the Commission had said about the meaning of the word “ban” in NMHG Distribution Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union:
‘The New Shorter Oxford English Dictionary includes the following meaning for the word ‘ban’: ‘a formal or authoritative prohibition (on or against something)’. This meaning accords with the use of the term in industrial relations discourse.”
38. Jessup J added that the concept of ban “involves a prohibition which is absolute or categorical, and not merely a matter of inclination or preference.”
39. Similarly, in Davids Distribution Pty Ltd v National Union of Workers, the Full Federal Court said that:
‘Even if the picketing could be described as a ‘limitation’ or ‘restriction’ on the work performed by the truck drivers, it could not properly be described as a ‘ban’; a ‘ban’ is a prohibition … ‘” (citations omitted) (emphasis added)
The UWU notice fails to provide a sufficiently detailed description of the nature of the action
For the reasons set out above, Icon submitted that ECA1 to ECA5 and ECA7 to ECA9 set out in the UWU Notice, fail to provide a sufficiently detailed description of the nature of the action proposed to be engaged in.
ECA1
Icon submitted that ECA1 is ambiguous. This is because ECA1 refers to stoppages of up to 1 hour, however, it also says that that such stoppages are “unlimited” and are “commencing indefinitely”. However, the caveat at ECA 1.1 indicates that the stoppages will be for a maximum of 5 minutes per individual stoppage.
Further, it is unclear if the reference to “individual stoppage” means per individual customer and/or members of their family stopped, such that there may be multiple 5 minute stoppages within the hour, or, in the alternative that for each 1 hour stoppage that occurs there will a single conversation with customers and/or other members of their family with a maximum duration of 5 minutes, thereafter no further stoppages within that 1 hour period will occur.
It was submitted that it is unclear when the stoppages will occur – namely they “will be undertaken either prior to, or at the conclusion of an appointment providing services and/or treatment”. There is also no clarity provided regarding what the terms “services and/or treatment” encompasses.
In Telstra, the Full; Bench said (at [14] to [15]):
“[14] The expression used in the notice of “indefinite stoppages” refers to a concept which is well recognised in workplace relations of a stoppage which is unlimited in time at its commencement. We reject the suggestion, advanced on Telstra’s behalf, that a notice of an indefinite stoppage could never comply with the requirement in s.414(6) that the action be specified. Whether it does comply will depend on the context in which it appears in the notice and the surrounding circumstances. In this case the use of the expression does very little to shed light on the nature of the action to be taken. First, the expression is used in the plural. This indicates that there will not be one stoppage of all CEPU members, but that there will be a number of them, thereby raising questions about the precise number and the location of the stoppages. Secondly, the expression is used in the notice in conjunction with the words “an unlimited number”. Read as a composite phrase the potential for variation in the number, length and location of stoppages is very wide.
[15] The indication that the action will be taken by CEPU members “in all States and Territories of Australia” might be an adequate specification if the type of action was defined more clearly. As it is, when the notice is read as a whole, the number, length and location of the stoppages which might occur are almost unlimited. The notice does no more than specify that there will be stoppages of an indeterminate number and length at locations at which CEPU members work.” (emphasis added)
Icon relied on the evidence of Ms Douglas to contend that both Icon and the UWU agree that patients who have been diagnosed with cancer who come to Icon facilities for treatment, and their family members, experience anxiety and distress when seeking treatment.
Icon submitted that it needs sufficient clarity to instigate appropriate mitigations to deal with the effects of the industrial action where patients are receiving radiation therapy in an Icon cancer treatment centre.
Icon submitted that ECA1 “read as a composite phrase”, makes “the potential for variation in the number, length and location of stoppages…very wide.”: Telstra at [14]. It submitted that the ambiguities and the lack of specificity in ECA1 render it impossible for Icon to know what steps it needs to take to mitigate the proposed bans.
Icon submitted that ECA1 is defective and does not provide the level of specificity required by s.414(6) of the Act to give Icon the opportunity to respond to the action by making relevant preparations.
ECA2
Icon submitted that ECA2 suffers from the same defects as ECA1, namely, ECA2 also lacks specificity and is ambiguous. Relevantly, the caveat provided for ECA 2.2 is that the stoppages in ECA2 refer to that action occurring ‘in the course of and in conjunction’ with ECA1.
The use of the terms ‘in the course of and in conjunction’ is non-specified and ambiguous, therefore, Icon does not know what it will be confronted with on and from 24 April 2024. Because of this, inter alia, Icon cannot plan and make reasonable preparations to deal with the effect of the industrial action.
It was submitted that ECA2 is defective and does not provide the level of specificity required by s.414(6) of the Act to give Icon the opportunity to respond to the action by making relevant preparations.
ECA3 and ECA4
Icon submitted that ECA3 and ECA4 notifies of indefinite bans on the performance of work ‘without’ certain events occurring, namely the wearing of campaign clothing and use of email signatures.
Icon submitted that ECA3 and ECA4 do not provide sufficient detail as to the mechanism that is proposed for eligible employees to obtain instructions from Icon in relation to ECA3 and ECA4 where the notified action is an indefinite prohibition on work “which is absolute or categorical.”: EnergyAustralia at [34] and [38].
Further, ECA3 and ECA4 do no more than specify that there will be indefinite bans on
the performance of work of an indeterminate number and length: Telstra at [15].
Icon submitted that ECA3 and ECA4 are defective and do not provide the level of specificity required by s.414(6) of the Act to give Icon the opportunity to respond to the action by making relevant preparations to deal with the effect of the industrial action.
ECA5
Icon submitted that ECA5 is “very wide” and ambiguous, in circumstances where there is proposed to be “an indefinite ban on capturing or recording treatment, imaging, and planning related Medicare codes”.
In Icon’s view, it is unclear if ECA5 involves only the capturing or recording of ‘codes’ which fall into the categories of treatment ‘codes’, imaging ‘codes’ and planning related Medicare ‘codes’, or if each of the terms used are references to distinct forms of capturing or recording (that is, not three forms of codes).
Icon argued that in circumstances where the actions involve an indefinite prohibition on work “which is absolute or categorical”, the notified action must be expressed with specificity. Further, the term “planning related” is very wide, non-specific and ambiguous. Therefore, the Applicant submitted that it does not know what it will be confronted with on and from 24 April 2024.
Icon referred to IBM Australia Ltd v National Distribution Services Pty Ltd (1991) 22 NSWLR 466, in which Kirby P (as his Honour was then) was called upon to construe an arbitration clause in a contract which included the term “related to”. Kirby P said the following (at 483):
“But meaning must be given to the phrase “related to this agreement or any breach thereof”: Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488 at 503, per Balcombe LJ. It is not only claims arising out of the agreement or any breaches of it which are covered but also those related to the agreement and any breaches of it.
The phrases “in relation to” or “related to” are of the widest import and should not, in the absence of compelling reasons to the contrary, be read down: Fountain v Alexander (1982) 150 CLR 615 at 629; Dowell Australia Ltd v Triden Contractors Pty Ltd [1982] 1 NSWLR 508 at 511 and Ashville Investments Ltd v Elmer Contractors Ltd. In its context I would, in the absence of contrary indications in the contract, understand the clause to be sufficiently wide to encompass claims that pre-contractual misrepresentations induced the complaining party to enter the contract.
There are no indications in the contract that the words should be construed narrowly. Nor, in my opinion, are there any compelling reasons in favour of reading down the meaning of the phrase. On the contrary there are powerful considerations in favour of the contrary view…” (emphasis added)
Further, Icon cited Burswood Management Limited and Others v Attorney-General (Cth) and Another (1990) 23 FCR 144 (‘Burswood’), where the Full Court of the Federal Court of Australia cited Davis J in Harfield v Health Insurance Commission (1987) 15 FCR 487 with approval, where the Full Court said (at 146):
“Expressions such as ‘relating to’, ‘in relation to’, ‘in connection with’ and ‘in respect of’
are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute … The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.”
Icon’s submission that terms such as “in relation to” were intended to be an expression of wide import was, in Icon’s view, also affirmed in Trevena v Thiess Pty Ltd [2016] FCA 468 when considering s.341(1)(c)(ii) of the Act:
“The phrase ‘in relation to’ was said by Mason J in Fountain v Alexander (1982) 150 CLR 615 at 629 to be ‘an expression of wide and general import, [which] should not be read down in the absence of some compelling reason for so doing.’ See also IBM Australia Limited v National Distribution Services Limited (1991) 22 NSWLR 466 at 483 (per Clarke JA). In Timic v Hammock [2001] FCA 74 at [9], Sundberg J acknowledged the expansive effect of the words ‘or relating to this [a]greement’ when he said that they were apt to pick up ‘issues beyond the agreement itself’ such as inducements to a party to enter the agreement and tortious and statutory claims to which it may give rise.”
Ultimately in relation to ECA5, Icon submitted that ECA5 merely specifies that there will be indefinite bans of work of an undetermined number and length, and the term “planning related” makes the scope of ECA5 too wide. Therefore, Icon asserted that ECA5 is defective and does not provide the level of specificity required by s.414(6) of the Act to give Icon the opportunity to respond to the action by making relevant preparations to deal with the effect of the action.
ECA7
In relation to ECA7, Icon submitted that it does no more than specify that there will be an indefinite ban on the performance of work of an indeterminate number and length, lacks specificity and is ambiguous. This is so because it is unclear if the prohibition on work which is “absolute or categorical” is limited to Litmos courses and Litmos training, or if it is broader and encompasses Litmos courses and any other forms of training.
Therefore, Icon submitted that ECA7 is defective and does not provide the level of specificity required by s.414(6) of the Act, thereby not giving Icon the opportunity to respond to the action.
ECA8
Icon submitted that ECA8 is also defective as it does not provide the level of specificity required by s.414(6) of the Act to give Icon the opportunity to respond to the action.
ECA9
Icon argued that ECA9 does no more than specify that there will be an indefinite ban on the performance of work of an indeterminate number and length, lacks specific and is ambiguous because it is unclear as to whether the prohibition “on scheduling work” “which is absolute or categorical” means all work.
Therefore, Icon submitted that ECA9 is defective as it does not provide the level of specificity required by s.414(6) of the Act to give Icon the opportunity to respond to the action.
Disposition
Icon submitted that the Commission should be satisfied that it is apparent that unprotected industrial action is threatened or being organised by the UWU.
The UWU’s submissions
The UWU submitted that the relevant statutory tests are not met, and therefore, the Commission’s power to order that industrial action stop, not occur or not be organised is not enlivened, and the order cannot be made.
The UWU noted that the application solely concerns the requirements of s.414(6) of the Act, and that this subsection does not define the level of specificity required when providing a notice of industrial action. On this point, the UWU referred to a number of cases.
In Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, the Full Court of the Federal Court considered a similar provision at s.170MO(5) of the Workplace Relations Act 1996 (Cth). The Court noted that the section was designed to at least enable an employer to take appropriate defensive action. The Full Court stated:
“Parliament did not indicate what degree of specificity it intended by the term “nature of the intended action”. To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s170MO(5) would seriously compromise the scheme of Division 8 of Part VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division.
…
Another reason for rejecting North J’s approach is that it places a premium on legalism. Framers of notices would need to undertake a careful analysis of the definition of ‘industrial action’, in the way North J did, in order to identify the paragraph which best fits the contemplated activity. Bearing in mind that notices will often, perhaps ordinarily, be prepared by non-lawyers acting without legal advice, it is unlikely Parliament intended that result.”
In Re Boral Resources (NSW) Pty Ltd[2010] FWAFB 1771, the Full Bench of Fair Work Australia stated, in relation to notices provided pursuant to s.414:
“… [T]he reason for giving the notice is that it is a requirement under the Act to enable the Union and its members to take protected action. But, having given the notice, nothing in the Act suggests that the Union and its members are obliged to carry through with the action as foreshadowed. There may be numerous reasons for not taking the action which may have arisen after the date of the notice.”
In Alcoa of Australia Limited v Australian Workers Union, Barker J examined the phrase “nature of the action” and stated as follows:
“…The requirement to specify the ‘nature of the action’ and then separately ‘the day it will start’, do not, of themselves, suggest to me that it is also necessary to particularise the commencement and finishing time of the proposed action in a notice. For the Court to supply this degree of particularisation might be seen to supplant the role of the legislature in prescribing industrial behaviour, a matter of continuous contention over the course of this country’s history since Federation in 1901.
Nonetheless, along with Goldberg J and Gilmour J, I accept that there may well be an argument, particularly in the circumstances of a particular case, that in specifying the “nature of the action”, having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or the conclusion times of the industrial action. But it is not a requirement that, to my mind, immediately leaps to the eye from the text of s.414(6).
I consider, therefore, there is force in a submission made on behalf of the union in this case that s.414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should as specific as the applicant in this case would like it to be.”
Icon has submitted that the purpose of s.414 is to allow the employer to take any defensive action available to it and that s.414 requires the notice to specify whether actions will occur “separately, concurrently, and/or consecutively.” However, the UWU argued that the notice provisions do not require such specificity, as demonstrated by the above cases. Section 414 does not require the notifier to disclose precise details of every future act, and the reason for industrial action is to cause a degree of inconvenience and expense to the employer.
The decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd (2010) 190 FCR 581 also states in considering the authorities:
“These observations suggest that the adequacy of a notice for the purposes of s 414(6) must be examined in context. An assessment of adequacy must take account of all the circumstances and examine expressions used in the context of whether the concepts embodied in the expressions are well recognised in workplace relations. The adequacy of the notice must take account of the practical applied circumstances of the workplace and whether the purpose of a notice is served by giving the addressee an understanding of what is contemplated and when it will occur so as to provide the recipient with an opportunity to consider his or her position and act or respond in a particular way (or as in this case, engage in the foreshadowed conduct set out in the notices ‘RF3’ and ‘RF7’ to which the challenged notices respond).”
The UWU submitted that Telstra v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2009] FWAFB 1698 and Davids support the proposition that if the notices give the employer the opportunity to respond to the action by making relevant preparations, they are compliant with s.414(6).
The UWU referred to Esso Australia Pty Ltd v Australian Workers Union [2016] 39 FCR 120, in which the Full Court of the Federal Court explained that the construction which should be given to notices of this type is that which a reasonable person in the position of the employer would understand the notice to mean. More specifically, what a reasonable person in the position of the employer would understand the industrial action to involve as well as not involve.
On that basis, the UWU rejected Icon’s suggestion that the use of the word “nature” infers employee claim action which is similar but not authorised by the protected action ballot order. The actions outlined in the notice state they commence from 5:00am on 24 April 2024, and the Act does not require the notice to state that the actions will occur “separately, concurrently, or consecutively”. The UWU submitted that it is self-evidence from the notice which specific actions are occurring, and when they are occurring.
ECA1
The UWU submitted that the detail provided in ECA1 stated that 5 minutes per individual stoppage will occur either prior to, or at the conclusion of, an appointment providing services and/or treatment to the employer’s customers and/or their families. The UWU says this was sufficiently detailed and specified, in that stoppages will occur either prior to, or at the conclusion of, an individual customer’s appointment where either services and/or treatment is provided.
ECA2
In relation to ECA2, the UWU argued that sufficient detail was provided to Icon to advise that the distribution of printed material would occur in conjunction with, and in the course of, ECA1, which would allow employees participating in the action to distribute printed material during their discussions with Icon’s customers and their families.
ECA3 and ECA4
The UWU submitted that the wording of the questions that authorised these actions, which informed the Notice, follow the decision of Mornington Peninsula Shire Council v ASU; ASU Mornington Peninsula Shire Council [2017] FWCFB 4740 at [49]-[50]:
“Turning then to the action described in 9 and 10 of the question, we consider that neither describes action that is capable of being a, ban, limitation or restriction on the performance of work by an employee”. Similarly, a ban on the wearing of a uniform or a name badge, in and of itself does not amount to a “ban, limitation or restriction on . . . the acceptance of or offering for work by an employee.” Though this might be the consequence in some circumstances, the ban on the wearing of the particular items of clothing in and of itself does not describe “the nature of the proposed industrial action”. The industrial action that might follow, namely a ban, limitation or restriction on the acceptance of or offering for work in uniform or while wearing a name badge, must in our view be described in the action for which authorisation through the ballot is sought. It should not be left to inference.
Thus, as Ross J reasoned in Easy, if an employee is only prepared to perform work if they are wearing a particular item of clothing then the employee is placing a limitation or restriction on the performance of work on the acceptance or offering for work. But that action must form part of the description of the nature of the proposed industrial action contained in the question to be put to employees in the ballot. The action described in 9 and 10 of the question does not do so. To the extent that the Commissioner concluded at [43] of her decision to the contrary, she was in our opinion in error. To the extent that the majority in ANF v Mornington could be said to have concluded that wearing of campaign clothing will at work be a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for the work by the employee for the purposes of s.19(1)(b), without more, then we respectfully disagree.”
ECA 5
The UWU argued that Icon has adopted a legalistic, rather than a plain meaning approach to this claim action.
The claim action states an indefinite ban on “capturing or recording treatment, imaging, and planning related Medicare codes”. The UWU noted this is phrased as a group separated by an Oxford comma, meaning the distinct reference to “related Medicare codes” covers the grouping of “treatment, imaging, and planning”, all of which have specific Medicare codes attached.
The UWU submitted that Icon has ignored that the action specifies the true nature of the ban and has instead focussed on an entirely distinct phrase of “planning related”, instead of adopting a plain reading of the grouping as a whole.
ECA7
The UWU submitted that plain language is used and there is no ambiguity in respect of what Litmos courses or training means.
ECA8
The UWU further submitted that it ought to be understood that setting up an out of office reply is typical for people who are outside of the office.
I questioned Mr Nash and Mr McCall intently on this issue, asking how that might be the case, and if the action was withdrawn at the UWU’s initiative, might some members be exposed to unprotected industrial action if they were unable to access their work email account if on leave? Submissions were made that arrangements could be made to provide relevant notice to employees to ensure in the event of a withdrawal of the industrial action, the relevant member could attend to changing their out of office notification.
ECA9
The UWU submitted that it is notorious that scheduling work refers to, in the case of the employees concerned, scheduling treatments for patients, and any pedantic approach of Icon should be rejected.
PABO application – 18 March 2024
It is noted that in respect of the PABO application before me on 18 March 2024, Icon made various representations to contest the order being made. On the morning of 18 March 2024, Icon, through its representative, informed the Commission and the UWU of the following:
“Whether the questions identified amount to industrial action
1. The Respondent does not consider that the following questions in the Application amount to industrial action as defined by section 19 FW Act – questions 7, 8, 9, 10, 12, 19, 29 and 31.
2. The Respondent requests that these questions are removed from the Application or for the Applicant to establish the basis upon which those questions amount to industrial action (as defined).”
I listed the matter for urgent hearing on 18 March 2024, which was then pushed back to 5:30pm on account of Icon requiring additional time to file its material. By 3:49pm that day, Icon advised that it no longer pressed its objections and a consent position had been reached in respect of the Commission being satisfied that it could issue a PABO with a notification period of five working days.
On account of the representation made by Icon that it withdrew its concerns, the hearing was vacated and the PABO later issued.
Of the matters originally in contention, several are the subject of this application by Icon.
Consideration
It appears to me to be disingenuous for Icon to hold contentions that proposed industrial action contained within a PABO application in March 2024 does not satisfy the conditions of protected industrial action, to withdraw those contentions, and essentially re-run some of those contentions one month later when faced with a notification of intended industrial action. Icon was represented at the time the PABO application contentions were withdrawn on account of a consent position having been reached and the convenience of an urgent hearing vacated.
In the matter before me today, there was no evidence presented by Icon as to the difficulties Icon might face in respect of any of the notified industrial action and any requirements it might take to mitigate action, other than the notorious fact that cancer patients and family members are likely to be distressed when experiencing cancer treatment.
There was much criticism in respect of the notified industrial action either being the same as that put in the ballot question to UWU members, or if there was some slight wording difference, this purportedly exposing Icon to some purported disadvantage in being able to mitigate the action to be taken, or that the industrial action might be ongoing for an indefinite period of time.
In respect of ECA1, I am satisfied that the caveat in 1.1, assuring Icon that the UWU members engaging in industrial action, while being authorised by the ballot to have stoppages of work up to 1 hour in duration for the purposes of speaking to, essentially, the cancer patients, their families and members of the public about the reasons for the industrial action, but only being undertaking for a maximum of five minutes per individual stoppage, puts Icon in a far better position than had the caveat not been given.
The caveat goes further in ensuring Icon that the action notified will not include speaking to members of the public.
In submissions from the UWU, it was stated that the members concerned would treat a maximum of five patients per hour. This was not contested by Icon. Accordingly, I find it baseless to suggest that the industrial action notified cannot be appropriately addressed by Icon and is in a far-reduced state than it could have been. There is enough specificity in the Notice to inform Icon as to the nature of the action and the day on which it will start, as required by s.414(6) of the Act. I am satisfied that the Notice in respect of ECA1 complies with s.414(6) of the Act.
Similarly, in respect of ECA2, the distribution of printed material will not be for the potential one hour as permitted by the ballot question, but limited to when the UWU member is speaking to the patient and their family for a maximum of five minutes. The potential to distribute material to the public has not materialised in the Notice and is clearly not planned at this time. I am satisfied that the Notice in respect of ECA2 complies with s.414(6) of the Act.
In respect of ECA3, the Radiation Therapists do not wear badges on account of the metal contained in badges and the equipment used. The issue is in relation only to clothing worn by them. No evidence was given by Icon as to the concerns it has in respect of mitigation and why this would not constitute protected industrial action. I am satisfied that the Notice in respect of ECA3 complies with s.414(6) of the Act.
In respect of ECA4, there was no evidence as to what damage Icon might suffer on account of the emails being sent, and if they are to be sent indefinitely, why that causes a greater concern to Icon than if they were to be sent for a defined period of time. I am satisfied that the Notice in respect of ECA4 complies with s.414(6) of the Act.
In respect of ECA5, I am satisfied that the UWU’s notification does not provide the specificity required to marry what was put to employees in the ballot question. Accordingly, I am satisfied that proposing to take this action would constitute unprotected industrial action. I am not satisfied that the Notice in respect of ECA5 complies with s.414(6) of the Act.
It is noted that a further notification can be made by the UWU in respect of this proposed action at a suitable time. If this course of action is taken, the UWU should ensure it identifies the action to correspond with the ballot question, endorsed by the members.
In respect of ECA7, I am satisfied that Litmos courses or training, on any plain English reading means Litmos courses or Litmos training. I am satisfied that the Notice in respect of ECA7 complies with s.414(6) of the Act.
In respect of ECA8, I hold concerns that the UWU contends that members might only put an out of office notification on when on leave. There is no evidence to support this, and it would be unfair to expose any member to future unprotected industrial action in the event the action was withdrawn, if they had an out of office notification on and had been unable to remove the notification. I have taken into account the assurances from the UWU that it would notify members if it sought to withdraw the particular action, but the specificity of the action cannot be assured.
I am not satisfied that the Notice in respect of ECA8 complies with s.414(6) of the Act. Accordingly, I am satisfied that proposing to take this action would constitute unprotected industrial action.
In respect of ECA9, I am satisfied that the parties do understand what a ban on scheduling work means, and that is scheduling patients. I am satisfied that the Notice in respect of ECA9 complies with s.414(6) of the Act.
In reaching the conclusions that I have, it has been necessary to take into account the consternations of Icon and allowing them to be able to respond to the notified industrial action, including making relevant preparations. I have had regard to Icon’s operations, including its size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action.
For the sake of clarity, I have also had regard to the nature of the industry Icon and the members are in, that being cancer patient treatment.
For the purposes of s.418 of the Act, I have determined that two items of industrial action that is not protected is threatened, impending or probable. I note that having satisfied myself that industrial action that is not protected is threatened, impending or probable, I must make the order. The decision to make the order is not discretionary. The order is in respect of the following two (only) forms of notified industrial action:
5. An indefinite ban on capturing or recording treatment, imaging, and planning related Medicare codes commencing from 5:00am 24 April 2024.
8. An indefinite ban on setting up an out of office response automatic reply without the inclusion of the United Workers Union logo/branding and campaign messaging being “Not so Iconic” and/or “Close the private-public pay gap” commencing from 5:00am 24 April 2024.
Order
Having satisfied myself that Icon has made out to the requisite degree of satisfaction that industrial action that would not be protected industrial action in respect of two items is threatened, impending or probable for the purposes of s.418(1)(b) of the Act, and is being organised for the purposes of s.418(1)(c) of the Act, an order will be issued in PR773877 in respect of the UWU, its officials and employees of Icon who are members of the UWU and who are covered by the proposed enterprise agreement for the industrial action to stop, not occur and not be organised.
Having heard the parties with respect to the appropriate duration of the order, and noting the UWU can provide a further s.414 notification to Icon in respect of the two items, and noting upcoming public holidays reducing the number of working days in Queensland, I consider it appropriate to make the order commencing from 11:00pm (AEST) on Tuesday, 23 April 2024 and ending at 9:00am (AEST) on Tuesday, 7 May 2024.
COMMISSIONER
Appearances:
T Spence, Counsel, instructed by J Myburgh of Ai Gorup Workplace Lawyers, with permission, for the Applicant.
A Nash on behalf of the Respondent.
Hearing details:
2024.
Brisbane.
By Video using Microsoft Teams.
23 April.
Printed by authority of the Commonwealth Government Printer
<PR773876>
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