ANALYSIS
11 The proposed Action 12 will involve managers providing response time data to the media without the necessary approval of their supervisors. The managers have access to such data for the purposes of performing their duties but it is no part of those duties to provide the information to any person outside Ambulance Victoria including the media.
12 The AEA sought to characterise the proposed action in a number of ways which, it contended, brought it within the terms of s 19(1)(a) and (b).
13 In its written submissions the AEA contended that:
The relevant policies prescribing how and when response time data might be provided to external persons are policies or directions properly characterised as policies or directions about the way in which work is to be performed and the conditions under which work is performed;
The policies require at least consultation with AV Corporate Communications, authorisation before the release of information, the direction of inquires to Ambulance Victoria Corporate Communications and Ambulance Victoria approval before release;
By not complying with the policy employees are working in a manner different from the way they customarily do. The result is a limitation. The employees will work but are limited in the way that they will work by implementing a ban to the effect that the employees will not comply with some of the employer's directions or policies (i.e. industrial action under s 19(1)(a));
The conduct is industrial action under s 19(1)(b) in that the employees are imposing a limitation on the conditions under which they work (i.e. refusing to comply with some of the conditions forming part of the policies and/or directions of the applicant);
Further, by providing the response time data during working hours the employees are not performing their usual work or are interrupting their usual work in order to communicate that data. That is a performance of work by the employees in a manner different from that in which it is customarily performed resulting in a ban, limitation or restriction upon the performance of work by the employee.
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).
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 Ltd v 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 "contemplates a 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.