United Voice v St John Ambulance Australia (NT) Inc

[2019] FWC 6611

[2019] FWC 6611

FAIR WORK COMMISSION

DECISION

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

United Voice
v
St John Ambulance Australia (NT) Inc
(B2019/777)

COMMISSIONER SIMPSON BRISBANE, 23 SEPTEMBER 2019

Proposed protected action ballot of employees of St John Ambulance Australia (NT) Inc.

Proposed protected action ballot of employees of St John Ambulance Australia (NT) Inc – whether questions described actions considered industrial action – whether actions not taken during rostered time constitute industrial action – application granted

[1] On 13 September 2019 the United Voice, Northern Territory Branch (the Union) filed with the Fair Work Commission (the Commission) a Form F34 application for a protected action ballot order. The Respondent to the application is St John Ambulance Australia (NT) Inc (the Respondent).

[2] The application was accompanied by a Form F34B Statutory Declaration in support of the application made by Ms Erina Early, the Secretary of Union. The Statutory Declaration set out in some detail the history of negotiations for a proposed enterprise agreement.

[3] The ballot questions as set out at clause 2.2 of the application are as follows:

“In support of reaching an Enterprise Agreement with St John Ambulance Australia (NT) Inc., do you authorise protected industrial action against your employer, separately, concurrently and/or consecutively, in the form of:

1. Recognised union delegates to speak to the media, politicians and the public regarding enterprise bargaining issues, conditions of employment, and operational issues in the ambulance industry.

Yes [ ] No [ ]

2. Wearing of St John Ambulance uniform at media and other briefings and at public events and when appearing in videos, blogs and in other media events, including social media (non-rostered members only).

Yes [ ] No [ ]

3. Recognised union delegates to post, publish or provide images of ambulance vehicles, ambulance stations, ambulance equipment and insignia in all forms of media; including social media.

Yes [ ] No [ ]

4. Distribution of flyers and other information to the general public regarding industrial action.

Yes [ ] No [ ]

5. Placing of union campaign material in the workplace.

Yes [ ] No [ ]

6. Union slogans on Ambulance vehicles. All attachments and markings will not be permanent and or cause damage to the vehicles. All attachments will not obstruct vision and will not cover reflective strips.

Yes [ ] No [ ]

7. No performance of centre duties. (Centre duties as defined by St John Ambulance Australia (NT) Policy for each Centre). Centre duties action excludes equipment checks and storage checks.

Yes [ ] No [ ]

8. An unlimited number of periodic bans on overtime.

Yes [ ] No [ ]

9. A ban on the non-performance of pre duty ambulance checklists before commencement of shift. Pre duty checklists to be only performed during paid working time only.

Yes [ ] No [ ]

10. No wearing of St John Ambulance uniform and instead wearing of hi-vis union shirt or other union branded clothing, such as hats.

Yes [ ] No [ ]

11. Protest in St John Ambulance uniform outside of St John Ambulance facilities, outside Parliament House and other prominent locations (non-rostered members only).

Yes [ ] No [ ]”

[4] On the day of filing email correspondence was sent from the chambers of Vice President Catanzariti requesting that the Respondent indicate whether they objected to the application by 4pm 16 September 2019.

[5] On 16 September the Respondent filed a Form F1 response to the application. The response objected to seven (7) of the eleven (11) ballot questions to be balloted.

[6] The response indicated that the objection to questions 1, 2, 3, 4, 5 and 6 and question 11 was on the basis that the questions did not refer to industrial action within the meaning of section 19 of the Fair Work Act 2009 (the FW Act) as none of the forms of “action” pertain to the performance of work and no protection will be afforded by s.415 of the FW Act to industrial action taken in relation to these ballot questions. The Respondent referred to the decision of Tracey J in Ambulance Victoria v United Voice [2014] FCA 1119.

[7] The response submitted that the proposed action would not be authorised by the ballot for the purposes of s.460(1)(c) of the FW Act. It was submitted that the questions 1 to 6 and 11 should not have been included as questions in the ballot for proposed industrial action as the action proposed in these questions is not industrial action.

[8] It was also submitted that what was proposed in questions 1 to 6 and 11 is not industrial action and is in breach of the policies and procedures including the Code of Conduct of St John Ambulance Australia (NT) Inc.

[9] The matter was listed for telephone hearing on Tuesday 17 September 2019. The Union was represented by Industrial Officer Ms Dianne Yali. For reasons given at the hearing the Respondent was granted permission to be represented by Mr Michael Easton of Counsel instructed by Nicole Dunn Lawyers.

[10] The hearing adjourned briefly into conference however the matter was unable to be resolved by agreement. The hearing resumed and Respondent advised it did not require Ms Early to give evidence and the respective cases would be put by way of submissions.

[11] The Respondent submitted that each of questions 1 to 6 and 11 all suffered from the same problem being that they do not disclose conduct that is capable of being understood to be industrial action within the meaning of s.19 of the FW Act because on their face they do not impact the performance of work in the way that it has been understood in authorities.

[12] The Respondent referred to paragraph 24 of a decision of the Full Bench of the Commission in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[2017] FWCFB 4740 where the Full Bench said as follows:

“The question whether action described in an application for a protected action ballot order is capable of being properly described as industrial action within the meaning of s.19 of the FW Act is answered primarily by construing the words used in any proposed question, ascertaining the nature of the action described by the proposed question and determining whether that action (having regard to the work performed by employees who are to be balloted) is capable of falling within the exhaustive statutory definition of industrial action. Section 19 of the FW Act provides:

“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).”

[13] The Respondent described paragraph 24 of the decision in Mornington Peninsula as a three stage test: the first step is to construe the words used, the second step is to ascertain the nature of the action described in the question, and the third step is to determine whether the action is capable of falling within the definition of industrial action in s.19 of the FW Act.

[14] The Respondent submitted that its position in relation to each of questions 1 to 6 and 11 was essentially the same; that when you have regard to the work of paramedics you can see that the conduct described in each question by what is proposed as industrial action is not conduct that will alter the way the work of paramedics is performed by for example stoppage, or reduction of work or alteration of work and it is a different activity to the work performed by paramedics and therefore when the words are construed it cannot be determined that the proposed industrial action is industrial action falling within the meaning of s.19 because it does not attach to the performance of the work.

[15] The Respondent submitted that if the terms of the questions were in a different form and included, for example, a reference to missing every second shift to distribute flyers to the public, it would then include action capable of falling within the definition in s.19 of the FW Act.

[16] Further the Respondent submitted that in order to construe the words the Commission needed to be cognisant of the job which involves being despatched to care for a patient, or standing ready to do that, and that if labour is to be altered or to be withdrawn it would need to be clear in each of the questions proposed and that is not the case.

[17] The Respondent stressed that it did not submit that the questions were ambiguous, but instead that the questions were missing an explicit reference to the work of paramedics and how this action is going to interfere with that work. It was submitted that therefore because the clear words are not present, the Commission would need to infer and understand and construe those words to mean that normal work will still be performed by paramedics even when those actions are being taken.

[18] The Respondent submitted that the history of the parties was that it is understood that work would continue to be performed when such actions were taken because of the nature of the work and the withdrawal of the labour of paramedics is never taken lightly. The Respondent said that this must lead to the conclusion that what is proposed cannot be industrial action because it will not interfere with the performance of work.

[19] The Respondent submitted that questions 2 and 11 make explicitly clear that the activities referred to would not happen during rostered time and could not be capable of being industrial action.

[20] The Union firstly submitted that the actions proposed in this application are the same as actions approved in previous orders made by the Commission.

[21] The Union referred to the Full Bench decision in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2010] FWAFB 526 at paragraph [19] which included the following:

“[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.”

[22] The Union also referred to the Full Bench decision in National Tertiary Education Industry Union v RMIT University[2013] FWCFB 9549 at paragraph [25] which said as follows:

“[25] It is not the case that the nature of the action as identified in the PABO requires a high level of specificity. The Act clearly provides that the PABO must include “the nature of the proposed industrial action” and the Full Bench guidance in John Holland makes clear that the questions should be specific enough such that “employees are capable of responding to them”.

[23] The Union submitted the details of the actions in the question for the order are clear enough. The Union repeated its earlier submissions that similar questions have been approved in other orders made for employees in connection with emergency services work. The Union said the proposed actions 1 to 6 and 11, if taken, would be said by the employer to be a breach of the code of conduct and subject to disciplinary processes that therefore are related to work. The Union made the above submissions particularly in relation to questions 2 and 11 which were confined to employees who were not rostered to work and said that whilst such action had been approved previously it would be guided by the Commission on the matter.

[24] The Union also referred to a decision of Commissioner Bissett in Australian Municipal, Administrative, Clerical and Services Union v Lend Lease [2014] FWC 5676 which included the following:

“[19]The ASU submits that each of the actions objected to by Lend Lease falls within the definition of industrial action in the Act. It says that the types of industrial action proposed are not new and have been utilised by unions on many occasions.

[20]………………….

[21]………………….

[22]In Re Mornington Peninsular City Shire Council (Re Mornington)an issue under consideration by the Full Bench was if the action proposed was capable of being described as industrial action within the meaning of the Act.

[23] In reference to the definition of industrial action, the majority found that:

[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.”

[25] The Union submitted that what is sought in this application is similar to what was found to be industrial action within the meaning of s.19 of the FW Act in the 2011 Mornington Peninsula decision.

[26] The Union referred to the Federal Court decision of Tracey J in Ambulance Victoria v United Voice [2014] FCA 1119 at paragraph 18 which reads as follows:

“18. Fair Work Australia and its successors 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 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.”

[27] The Union argued that the case dealt with by Tracey J in Ambulance Victoria v United Voice involved matters arising after a successful PABO and ballot and concerned whether action notified under s 414 was protected by s 415.

[28] In reply the Respondent referred to paragraph [18] of the decision of Tracey J and said that it did not support a wait and see attitude. The decision said the task can be difficult if there is ambiguity, however the Respondent submitted there was no ambiguity that would bring in any of the factors referred to by the Union. The Respondent submitted the questions are on their face capable of being construed, and the John Holland decision discussing ambiguity can be distinguished for this matter because the questions are not ambiguous and the questions do not in any way refer to interfering with the performance of work.

[29] The Respondent also submitted that the earlier Full Bench (2011 decision) in Mornington Peninsula Shire Council was reconsidered and overtaken by the later Federal Court decision in Ambulance Victoria v United Voice and the 2017 Commission Full Bench decision in Mornington Peninsula Shire Council v AMACSU where the Full Bench said the following at paragraphs [36] to [39].

“[36] ASU contends further that, the Commissioner correctly concluded that wearing of such clothing would place a limitation or restriction on the performance of work. The basis for this is explained in the extract set out in the decision of ANF v Mornington at [20]-[32] and in Easy at [152] and [157].  It further contends that the ASU accepted that the Council has a clothing policy, which clothing policy, must be taken to include or contemplate or be informed by the type of communication that the Council wishes to effect through the interaction of its employees with the Council’s customers, residents, ratepayers or the public in general. It says that to that extent the wearing of campaign clothing must involve a limitation or restriction on the performance of work in that it makes a different communication from that which the employer, by its uniform policy, wants in the interaction between its employees and the public.

[37] Lastly, ASU contends that in any event, the Commissioner was clearly correct in that, to the extent that persons would only work whilst wearing campaign clothing that that of itself must constitute a limitation or restriction on the acceptance or offering for work. 

[38] We do not consider that any of the action described in 4 or 8 describes the nature of any industrial action. In our view is not sufficient to suggest that the corollary of performing work while wearing campaign material and badges, or while wearing casual clothes, or while not wearing a uniform or a name badge, is that there is a refusal to perform work in circumstances other than those described. We consider that the action for which approval is sought through a protected action ballot must itself describe the nature of the industrial action for which approval is sought in the question. That there will be a refusal to perform work other than in circumstances as described must in our view be expressed and not merely inferred. Indeed, the action described in 6 in the form amended, to which no objection is taken does so. It describes the action as a ban on the performance of work in clothes to which campaign materials is not attached.

[39] The action described in 4 is an “indefinite or periodic industrial action in the form of performing work while wearing campaign material and/or badges” (our emphasis). The action as described results in the performance of work and does not fall within any of the defined action found in the enumerated subparagraphs of s.19 of the FW Act. The action described in 8 of the question suffers from the same flaw in that it describes the industrial action to be in the form of wearing casual clothes. Neither of the action in 4 or 8 of the question describes any refusal to perform work or a delay in the performance of work, or the adoption of a practice in relation to work which will have that result, or a ban or limitation or restriction on the performance of work.”

[30] The Respondent submitted that the Union argument in this matter is the same as the argument as put by the ASU in the Mornington v AMACSU decision. The Respondent placed particular emphasis on the words of the Full Bench at paragraph [38] “That there will be a refusal to perform work other than in circumstances as described must in our view be expressed and not merely inferred.” The Respondent submitted that if the proposed action is intended to interfere with work then it needs to be stated, and because it is not stated it can be concluded that it is not intended to interfere with work.

[31] The paragraph the Respondent relies on from the Mornington v AMACSU decision is referring to specific facts as they pertained in that case, being an ultimately incorrect claim by AMACSU that performing work while wearing campaign material and/or badges, or simply wearing casual clothes was capable of falling within the meaning of industrial action as defined in s.19. The Full Bench concluded neither of those actions described any refusal to perform work or a delay in the performance of work, or the adoption of a practice in relation to work which will have that result, or a ban or limitation or restriction on the performance of work.

[32] I accept the Respondent’s argument as it pertains to questions 2 and 11. Questions 2 and 11 are clearly directed to actions to be taken at times when employees are not rostered to work and any actions taken that would not otherwise be connected to work time cannot be a refusal to perform work or a delay in the performance of work, or the adoption of a practice in relation to work which will have that result, or a ban or limitation or restriction on the performance of work.

[33] However in the case of the other disputed questions 1, 3, 4, 5 and 6, they are distinguishable from the questions in Mornington Peninsula v AMACSU found not to fall within the definition at s.19 of the FW Act. The measures described in questions 4, 8, 9 and 10 were found by the Full Bench in Mornington Peninsula v AMACSU not to fall within the definition because on their face they were not capable of involving a refusal to perform work or a delay in the performance of work, or the adoption of a practice in relation to work which will have that result, or a ban or limitation or restriction on the performance of work.

[34] Applying what the Respondent described as the three stage test in paragraph [24] of Mornington Peninsula v AMACSU, construing the words used in questions 1, 3, 4, 5 and 6 they each involve the doing of various things (as compared to the wearing of things). The nature of the actions described in questions 1, 3, 4, 5 and 6 are sufficiently specific that what the actions involve is self-evident.

[35] I disagree with the Respondent’s submission that the questions are unambiguously not directed to action that could fall within the meaning of s 19. At the heart of the Respondent’s argument is the fact of the questions 1, 3, 4, 5 and 6 do not make explicit that the actions will interfere with work. On that basis it is put that therefore it is clear the actions will not interfere with work.

[36] However it is a leap from the words not explicitly stating that the actions will involve interference with the performance of work to a conclusion that therefore they are not capable of doing so. That conclusion is not open on the words themselves.

[37] The decision of the Full Bench at paragraph [44] to [46] in Mornington Peninsula v AMACSU said as follows:

“[44] It should immediately be apparent that the specificity with which “the action” is to be described in a notice might not be the same as a requirement that a question in a ballot include “the nature of” the proposed industrial action. Both concern describing action that is industrial action as defined in s.19 of the FW Act. However, the specificity with which the action needs to be described seems to us to be different. It seems to us that the structure of the differing legislative requirements, contemplates that at the time that a member of the Commission comes to consider whether to make a protected action ballot order, the context and manner in which employees might subsequently choose to take proposed industrial action, the nature of which is described in the question, may not be clear. However, different considerations will apply once a ballot has been conducted, the nature of the industrial action has been approved, and a bargaining representative gives notice of the action that will be taken by employees. When the notice is given, greater clarity about the context and manner in which employees will take industrial action, will doubtless be apparent and so greater clarity in describing the action to be taken will be required.

[45] Justice Tracey recognised this difficulty in Ambulance Victoria when his Honour observed:

“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.”

[46] True it is that in both instances the question will be whether the action described is industrial action as defined. However, absent material about context and manner of taking the action described in a protected action ballot application question during the determinative phase of considering whether to make a protected action ballot order, it should be unsurprising that action that is capable of being industrial action will be permitted to be included in questions directed to employees who are to be balloted. In this regard, we respectfully agree with the reasoning of Commissioner Hampton in Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology.” 

[38] The matter dealt with by Commissioner Hampton and referred to by the Full Bench is quite similar to this matter in terms of the nature of action challenged as not falling within the definition in s.19. The actions were set out at paragraph 47 of the decision of Commissioner Hampton as follows:

•  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 Bargaining 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.

[39] Commissioner Hampton’s reasoning concluded as follows:

[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.” 

[40] I adopt the same approach of Commissioner Hampton that whether the proposed action may not be industrial action as defined will depend on whether the proposed action involved the employee undertaking their work in a manner that resulted in a restriction, limitation or delay in the performance of their duties. I am satisfied the nature of the actions described in each of the questions 1, 3, 4, 5 and 6 is capable of falling within the definition of industrial action in s.19 of the FW Act.

[41] It was not in contest that the Union was genuinely trying to reach agreement. I am satisfied on the basis of the material before me that the other statutory requires have been met and on that basis I have determined to issue the PABO excluding the proposed questions 2 and 11 for the reasons set out above.

COMMISSIONER

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