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[2018] FWC 2068
General information, not legal advice.
Fair Work Commission
2018-04-16
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 16 April 2018.
Personal information in paragraph 10 of the decision is removed.
s.418 - Application for an order that industrial action by employees or employers stop etc.
National Patient Transport Pty Ltd T/A National Patient Transport
United Voice; Australian Nursing and Midwifery Federation
Order to stop industrial action - Reasons for Decision.
[1] An application seeking an order for planned industrial action by certain employees of National Patient Transport Pty Ltd (NPT) was made at about 6:00 PM on Tuesday, 10 April 2018. The application was made pursuant to s.418 (FWC must order that industrial action by employees or employers must stop etc) of the Fair Work Act 2009. It seeks orders against United Voice and the Australian Nursing and Midwifery Federation (ANMF) and their respective members employed by NPT with the effect of those orders being to stop planned industrial action notified by the two unions to otherwise commence from the first shift on Friday, 13 April 2018.
[2] Through its application NPT contends that the planned industrial action notified to it by United Voice and the ANMF is not protected industrial action because the requirements of s.414(6) of the Act have not been satisfied. This is said to be the case because the notices do not adequately specify the nature of the action to be taken.
[3] NPT's application was the subject of a hearing before me from 4:00 PM on Wednesday, 11 April 2018 at which NPT appeared and were heard. An earlier hearing of the matter was not possible for the reason that some of the United Voice representative were a considerable distance away from Melbourne.
[4] At the conclusion of the hearing I advised the parties of my decision, to the effect that the application would be granted in part, and that my reasons for decision would be published as soon as practicable.
[5] NPT employees, the ANMF and the United Voice are covered by the National Patient Transport Pty Ltd Employees Enterprise Agreement 2014[1] (the Agreement) which was approved by the Commission on 26 May 2014 and came into operation on 2 June 2014. The nominal expiry date of the agreement is 30 June 2017.
[6] Matthew Minucci, of Counsel appeared for NPT and Eugene White, of Counsel, appeared for United Voice and the ANMF. Permission for each party to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)). I thank each Counsel for their submissions and that each capably assisted the efficient conduct of this matter.
[7] Evidence was provided by NPT in the course of the hearing from Russell Truman, its Victorian Operations Manager, who provided both a written witness statement and oral evidence. NPT also relied upon the material contained within its application documents and the submissions of Mr Minucci. The United Voice and ANMF relied on the oral submissions of Mr White and his cross-examination of Mr Truman and did not provide their own evidence to the Commission
[8] An antecedent to the NPT application is a protected action ballot order issued by me on 28 February 2018.[2] The ballot was conducted by the Australian Electoral Commission (AEC) which declared the results of the ballot on 29 March 2018. In its declaration the AEC reported that there were 109 employees on the role of voters with 58 declaration envelopes returned by eligible voters, of whom 49 approved the action set out in a single rolled up question. Through correspondence to the Commission and the AEC following the declaration of the protected action ballot NPT took issue with the conduct of the ballot with it putting forward that the ballot conducted by the AEC was not in accordance with the Commission's order. A subsequent report provided by the AEC pursuant to s.458 of the Act reported upon NPT's complaint and dismissed it finding that the "possible irregularities discovered by the Returning Officer in relation to the conduct of this ballot were unsubstantiated".
[9] NPT's views about the ballot are referred to in this decision for the reason that the complaint made at the time by the company, to the effect that the matters raised by it could lead to the proposition that any proposed industrial action as a consequence of the ballot would not be authorised, was not pursued by the company in the course of the hearing before me.
[10] The industrial action notified by United Voice and the ANMF is in identical terms, with the United Voice notification being as follows;
Re: Fair Work Act-Section 44 (sic) -Notice requirements for industrial action.
The Ambulance Section of United Voice hereby gives three working days' notice pursuant to Section 44 (sic) of the Fair Work Act of the following protected industrial action to be taken by employees of NPT, who are Transport Officers, Ambulance Transport Attendants, Clinical Instructors and Client Service Officers and who are members of United Voice, commencing from the first shift on Friday 13 April 2018:
• The wearing of campaign related materials, such as t-shirts, badges, and stickers, and stopping work for up to ten minutes duration on each occasion to explain the campaign-related material to patients, their families and the public.
• The distribution of campaign related materials to patients, their families, the public and the media and stopping work for up to ten minutes duration on each occasion to explain the campaign-related material to patients, their families and the public.
• The utilization of the employer's property for the provision of the information
concerning the views of the employees about any aspect of the union's campaign and stopping work up to ten minutes duration on each occasion to explain those views to patients, their families and the public.
• All staff to return to their designated branch for lunch.
• A ban on completing small blue Patient Care Records.
If you have any queries in relation to the matter, please contact United Voice Industrial Officer Amanda Kaczmarek on [phone number removed] or via email: [email address removed].
[11] At the commencement of proceedings, United Voice and ANMF advised the Commission that they undertook to no longer pursue the third form of notified industrial action, while reserving the right to re-notify action of the same form at some later time.
[12] The parties' broad positions may be summarised in the following way;
NPT
NPT submits it is involved in the transportation of patients to and from various hospitals around Australia including Victoria, Western Australia and New South Wales. In Victoria NPT operates from 24 locations and has a contract with Ambulance Victoria, which accounts for about 40% of its business. Although shifts worked are between 10 to 12 hours in duration, they are worked on a 24 hour rotation whereby shift starting times vary enormously between 5:00 AM and 10:00 PM on a given day.
NPT argues the industrial action is likely to have significant financial and operational impact on its business and its customers. With respect to the Ambulance Victoria work, jobs are allocated by that agency and not NPT, which has no oversight of where their employee may be during the shift.
NPT argue that the nature of the planned industrial action to be taken is not adequately specified in the notices from United Voice and ANMF. Despite the Act's notification requirements being designed to ensure that an employer is given the opportunity to respond to any proposed industrial action by making relevant preparations, the notices do not provide NPT with that opportunity.
NPT also argue that the absence of a properly defined time period in the notifications has the effect of the company not knowing what it will be faced with. It is argued that the notifications do no more than specify that there will be industrial action occurring for some unknown period of time at some unknown place of work.
In relation to the fourth notified form of industrial action, mooting that all employees will return to their designated branch for lunch, it is argued that the terminology within the notice is problematic, since employees do not have designated branches and there is no detail of precisely what "lunch" is.
United Voice and ANMF
The two unions submit that the notifications lack no precision or clarity, and that the proper context of NPT allows it to both know the detail of what is notified and to respond to it.
It is argued that NPT is well able to respond to each of the forms of notified industrial action and that the company could have, but did not, endeavour to communicate with its customers to forewarn them both of forthcoming industrial action as well as its potential impact.
The unions argue that a non-legalistic approach needs to be taken to the notifications. In assessing whether notice has been given of the specific nature of the action, regard must be had not only to the approach of the notices, but the reason for them and the language of the notifications should be assessed using principles of ordinary industrial English.
[13] Relevant to this decision are the provisions of s.418, under which NPT's application is made, and s.414 which provides the notice requirements for industrial action.
[14] It is also noted that s.408 of the Act provides that industrial action is protected industrial action if it is "employee claim action" which in turn is defined within s.409 which contains a requirement that it meet the common requirements set out in Part 3 - 3, Division 2, Subdivision B. Relevant to that analysis is that s.414 of the Act is contained within the latter mention Subdivision. The term "industrial action" is defined within s.19 of the Act.
[15] The context of this matter requires a consideration only of the provisions of ss.414 and 418, each of which is set out herein;
(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.
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph - that period of notice.
Notice of employee claim action not to be given until ballot results declared
(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.
(4) Before a person engages in employee response 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.
(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:
(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and
(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.
(6) A notice given under this section must specify the nature of the action and the day on which it will start."
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."
[16] There is no argument before the Commission that any of the elements of the notice requirements other than under s.414(6) of the Act have not been complied with by the two unions. There is no argument taken by NPT, save for the contentions about s.414(6), that what is notified is not industrial action as defined within s.19 of the Act.
[17] Neither United Voice or ANMF contend that the planned industrial action is not happening, threatened, impending or probable or is being organised (s.418(1)). Nor is is it submitted that NPT do not have the requisite standing to make this application (s.418(2)).
[18] As a result the principal question for determination is whether the notified industrial action conforms with s.414(6) of the Act which requires the notifications given "specify the nature of the action and the day on which it will start". If the notices do not so comply then what has been notified will not be protected industrial action under s.418(1), which in turn obliges the Commission to make an order that the industrial action be stopped, not occur, or not be organised (as the case may be) for a period.
[19] The principles to be followed by the Commission in considering whether particular notices satisfy the requirements of s.414(6) of the Act have been set out at length by the Full Bench in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union:[3]
"[36] A number of decisions of the Federal Court of Australia and the Commission have considered the role and purpose of a notice of intention to take protected action and the adequacy of the content of such notices. We refer to those we believe to be the key decisions and we do so in the chronological order in which they were published. The first is Davids Distribution. [4]13 The proceeding which that appeal related to was an application which had been made by the union under the then s.170MU of the WR Act asserting the employer had dismissed employees wholly or partly because they were engaged in protected action. The employer had dismissed employees who had been involved in strikes and picketing and the question that arose was if picketing came within the definition of industrial action and could therefore be protected action. The appeal was against the grant of an interlocutory injunction restraining the employer from terminating the employment of its employees.
[37] The Full Court [5] found that picketing was not industrial action and, at paragraph [77], said that conclusion made it "strictly unnecessary" to determine the issue about whether the notice was in terms which made it effective to attract the immunity for protected action provided by the WR Act. However, it decided to consider that matter commenting that the issue was of general importance and had been fully argued before it. The notice had been given under the then s.170MO(5) of the WR Act. We here interpose to note that we have earlier reproduced that section and note that it was in similar, but not identical terms to s.414(6). About the terms of s.170MO(5) the Court said:
"[84] The question addressed by North J in the lengthy passage just quoted is one of considerable difficulty, about which people may reasonably reach different conclusions. 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.
[86] 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.
[87] We think s170MO(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 shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down 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 lockout 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.
[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, "an indefinite strike of all employees", "a lockout of all employees employed in the AB fabrication plant", "a ban on overtime", "a ban of the use of MN equipment", "rolling stoppages throughout the mine", "a ban on the servicing of delivery vehicles."
[38] Davids Distribution was considered and applied by a Full Bench of Fair Work Australia in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Telstra).[6]
"[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 Davis Distribution_,_ 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."
"[18] In concluding it should be emphasised that whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context. Every case is different and each notice must be looked at having regard to all of the relevant considerations."
[41] The next relevant decision is the Federal Court decision of Justice Merkel in Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd (Yallourn). [7] This matter concerned an argument about the adequacy of a s.170MO(5) notice given by the CFMEU to the employer. The following extracts from that decision were referred to by either the Appellant or the CFMEU.
"[17] In Yallourn Energy I considered whether a notice relating to certain bans and rolling stoppages at the employer's sites complied with s 170(5). I expressed the view (at 214) that, as legal immunity is conferred in respect of protected industrial action, it is of obvious importance that the nature of the proposed action be specified accurately, as a failure to do so will be likely to lead to uncertainty and litigation as to whether the action taken subsequent to the notice is protected under the Act. Accordingly, it is critical that the particularity be sufficient to enable the parties to be aware of the nature of the intended action and whether the action actually taken in reliance on the notice is or is not protected action when it is taken.
[20] In each of the cases to which I have referred the issue related to whether the generality of the notice was such that it had failed to state with sufficient clarity the nature of the intended action. A different issue arises in the present case as the notice relates to action to achieve a particular outcome rather than to action to be taken irrespective of the outcome. Accordingly, it was contended by counsel for Yallourn Energy that the notice relates to action that might be taken, rather than the action intended to be taken, and therefore it failed to describe the nature of the "intended action": see Davids Distribution at 495.
[21] Whether a notice is sufficient to comply with s 170MO(5) can involve questions of fact but will more usually involve questions of degree. When assessing such questions, as was stated in Davids Distribution at 495, it is important that the inquiry does not place a premium on legalism; rather the inquiry is as to what the notice would convey "in ordinary industrial English" to the reader. Further, the purposes for which the notice is given (to which I have referred above) can be relevant factors in determining whether a notice adequately or sufficiently conveys the nature of the industrial action intended to be taken: cf A1 v National Crime Authority (1996) 67 FCR 464 at 479-481 and National Crime Authority v A1 (1997) 75 FCR 274 at 277 and 294."
[42] Yallourn Energy submitted to Justice Merkel that the notice stated the outcome of the industrial action intended to be taken, rather than the nature of that action which, it argued, could take a number of different forms, none of which were specified in it. This is an argument run again by the Appellant in this appeal. About this His Honour said:
"[30] Yallourn Energy contended that other steps, namely those specified in paras 61(d), (e), (f) and (g) and 62(b), (e) and (f) of Mr Smith's affidavit could also be utilised to reduce generation and coal tonnage. While the evidence discloses that certain steps, such as overtime and repair bans, could, together with other factors, contribute to a limiting or restricting of generation or capacity, in my view the specificity of the outcomes of the intended action would not be taken by the employer to embrace action which is not capable of achieving those outcomes. On a legalistic view, the notice may be taken to be capable of extending to such action, but it is unlikely that it would be taken to convey to the reader in "ordinary industrial English" that that was the action intended to be taken. The specificity with which the output and capacity is stated would enable the employer, with a relatively high degree of certainty, to identify the nature of the industrial action that is intended to be taken by members of the Union.
[31] Further, the Union's affidavit evidence, which was not disputed, was that Yallourn Energy would understand the notice to refer to the direct action as set out in either the Union formulations or the Yallourn Energy formulations because that is how it would give operating instructions if it sought to achieve the specified outputs. Mr Smith of Yallourn Energy had no difficulty in stating the action that is necessary to achieve the stated outcomes. Thus, upon receipt of the notice, Yallourn Energy would be well placed to take such defensive action as it may be advised to take. While the precise action to be taken is not stated, and therefore the defensive action may not be able to be precisely formulated, that limitation is inherent in the requirement that it is only necessary to notify the employer of the nature of the intended action, rather than the actual intended action. Yallourn Energy would also be well placed to determine whether the action actually taken in reliance upon the notice is or is not protected action when it is taken.
[32] It is significant that the notice states specific output and capacity figures which would be understood by the employer to be achievable only by the taking of well known and well understood action by employees who are members of the Union. A quite different situation would apply if the notice stated that limitations or restrictions were to be imposed on output or capacity up to a stated figure, rather than to a stated figure. A notice in that form would be likely to be so general that it would fail to convey to the reader the nature of the intended action. Such a notice would convey to the reader the action that might be taken, rather than the action intended to be taken. In that event, the notice would not comply with s 170MO(5).
[33] Finally, a danger inherent in stating an outcome rather than specifying the action designed to achieve it, is that the intended action may not be able to be clearly identified as protected action until after, rather than before, it is taken. If that were the case, the notice would be unlikely to comply with s 170MO(5) as, inter alia, it would render nugatory the purpose of giving 3 days prior notice in respect of the intended action. However, in the present case, as the steps that are capable of achieving the stated outcomes were well known and understood by Yallourn Energy, they were able to be identified as such prior to, rather than after, the steps being taken.
[34] In those circumstances I have formed the view that the notice sufficiently and adequately states the nature of the intended action. Accordingly, on the basis of the material presently before the Court, the preferable view, albeit on a prima facie basis, is that the notice does comply with s 170MO(5)."
[43] The next decision is of Justice Barker in Alcoa of Australia Limited v The Australian Workers' Union (Alcoa). [8] The issue there was whether the applicant was entitled to an interlocutory injunction restraining the union from issuing a notice of purported protected industrial action pursuant to s.414 of the FW Act if the notice failed to specify the commencement time and duration of the proposed industrial action described in the notice.
His Honour noted that he had not been referred to any case in which the issue about specifying the duration of proposed industrial action with particularity, had been finally decided. [9] He said:
"[33] For myself, while I accept the admonition of Goldberg J that a matter may not be so simply decided, one would have thought, taking the text of s 414(6) at face value, that because the Parliament has chosen to impose some notice requirements of industrial action when, prior to the Workplace Relations Act 1996 (Cth), there were none, a court should be slow, in effect, to travel beyond the plain words of the provision. 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.
[34] 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).
[35] 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."
[44] The next case we should refer to is the decision of Justice Greenwood in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd 19 (Pinnacle). The union had sought a declaration that the employer had contravened provisions of the FW Act by taking certain action against employees who had participated in protected industrial action. His Honour's reasons addressed s.414(6) of the FW Act. In the course of those reasons he approved the comments that had been made by the Full Bench in Telstra. Relevant extracts from the judgment are as follows:
"[56] The Statement of Agreed Facts does not convey any sense of the scope or scale of the respondent's undertaking although it may properly be inferred that an enterprise that provides vegetation inspection services and pruning and removal services is not a large scale corporation. In Telstra at [12] the Full Bench observed that the purpose of the notice requirement is to give the "recipient" (put more generally) of the notice an opportunity to respond to the action by making relevant preparations or considering a particular response. That purpose is entirely consistent with the observations about the purpose of notice provisions expressed by the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at [87]. In Telstra at [12], the Full Bench also noted that "[w]hether 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". In Telstra, the question in issue was the adequacy of notice given on behalf of employees in circumstances where Telstra employed 34,000 employees."
[45] His Honour referred to and commented upon the wording of the notice in Telstra and then said:
"[58] 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)."" (references maintained from original)
[20] The decision to be made by the Commission in this matter has had regard to the foregoing principles.
[21] The evidence allows findings about NPT of a diverse and disparate workforce across similarly widely dispersed workplaces. Its 500 Victorian employees comprise around 300 Patient Transport Officers, who provide non-emergency transport and care of low acuity patients; around 140 Ambulance Transport Attendants, who provide non-emergency client care and transport services for low to medium acuity patients; about 30 Critical Care Registered Nurses, who hold a critical care qualification and post graduate experience in intensive care or emergency nursing; and around 15 Customer Service Operators who work within the Operations Centre to arrange metropolitan and regional transportation for clients.
[22] Employees are engaged across 6 "dedicated buildings" sites and 18 "satellite" premises located across Victoria. Employees are either assigned on an ongoing basis to one of these sites, or are rostered to work from only a handful of them. The evidence of Mr Truman supports a finding that, irrespective of an employee's "permanence" rostering arrangements mean they have certainty about where their work base is, at least for the forward roster period.
[23] As mentioned earlier, around 40% of NPT's business comes from a contract with Ambulance Victoria, and NPT has little managerial oversight for its employees providing services to that agency. About 40 vehicles and 80 employees are assigned to the Ambulance Victoria work each day, which involves the provision of non-emergency patient transport and not the provision of acute ambulance or paramedic services. The work undertaken for Ambulance Victoria is assigned and monitored by another Victorian Government authority, the Emergency Services Telecommunications Authority.
[24] Alongside these matters, it is to be observed that NPT's work is to provide non-emergency patient transport to health providers. No part of NPT's case put forward that it provided emergency services, although its evidence did provide that patients were routinely at different levels of acuity. Patient Transport Officers provide non-emergency transport and care of low acuity patients and Ambulance Transport Attendants provide non-emergency client care and transport services for low to medium acuity patients. Further, Mr Truman's evidence includes that patients are vulnerable and do not generally react well to change or unpredictability (such as may stem from industrial action of some kind).
[25] The argument put forward by NPT in these proceedings is threefold;
Because the notices do not sufficiently specify the nature of the industrial action NPT is unable to either ensure patient safety is not compromised or to otherwise ensure service delivery;
The way in which the notices are framed means NPT cannot know the form of timing and what is planned in the way of industrial action and that such circumstances substantially and improperly deprive it of the ability to prepare for and respond to the proposed action. This problem is compounded by the fact that the notices came in identical form simultaneously from both unions. That fact means NPT is unable to differentiate between the impact that could arise from industrial action taken by United Voice members and that which may be taken by ANMF members. The possible combination of stoppages adds to what NPT sees as the uncertainty and confusion arising from the notices, which in turn is a matter for consideration about whether the notices have complied with s.414(6) of the Act; and
The notifications are defective because they do not particularise the duration of the planned industrial action. In this regard NPT put forward that while the notices say that the planned industrial action will commence from the first shift on Friday, 13 April 2018 they do not indicate when the proposed action will cease.
[26] In relation to the first contention, NPT's submissions in relation to the potential for compromise of patient safety and service delivery appear to be in connection only with the third notified form of industrial action was pursued (now withdrawn as a result of the unions' undertaking). On the matter of patient safety and service delivery, NPT put forward only that the lack of specifics in the notices about what property is to be used inhibited NPT's ability to ensure that patient safety was not compromised at any stage, and to otherwise ensure service delivery. Mr Truman did not develop further the matter of patient safety in his evidence. The fact that the reference within the company's submissions to these subjects is in connection with the type of property that might be appropriated if the third notified form of industrial action was pursued leads to the conclusion that the company's concerns about the safety impact of the notifications is with reference mainly to that third notified form. Even so, I note the general submission made by NPT in the hearing that there should be "a high degree of specificity to ensure that appropriate measures can be taken with respect to patient safety and matters of that kind".[10]
[27] In relation to the second contention that NPT is unable to prepare for and respond to the proposed action NPT puts forward the argument that being faced with the prospect of the action as defined in the notices and referred to above, it will not be able to know with any precision where or when the stoppage may occur. It will also be unable to predict which property or equipment will be utilised for the provision of information concerning the views of employees.
[28] NPT's third contention, that the notifications do not indicate when the proposed action will cease draws both upon the practicality of the situation and the company's ability to respond, as well as whether the failure to include information about the duration of the planned industrial action is consistent with the Act's requirements. Such contention though does no more than highlight the likelihood of what Barker J observed in Alcoa of Australia Ltd v Australian Workers' Union and referred to above that in general compass it may be regarded that protected industrial action is likely to cause a degree of inconvenience and expense to an employer and that such is a legitimate bargaining tool.[11] Perhaps in this case if the implemented action was particularly effective it may be short; in the alternative, it could go on for some time. Such progression of matters is hardly unusual for protected industrial action.
[29] The first two of the five notified forms of industrial action are as follows;
"• The wearing of campaign related materials, such as t-shirts, badges, and stickers, and stopping work for up to ten minutes duration on each occasion to explain the campaign-related material to patients, their families and the public.
[30] These two notifications are each a compound of two parts; the taking of one passive form of action, such as the wearing of or the distribution of campaign materials, combined with the taking of a greater, more impactful action, being the stopping of work for up to 10 minutes on each occasion to explain matters to patients, families and the public. The wearing of campaign clothing or distribution of campaign materials, in and of itself, is likely not industrial action, but plainly with the inclusion of the stoppages it would be; Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[12] The first part of these two forms of notified action is only enabled as industrial action because it is coupled in each case with the second part.
[31] In real effect the industrial action is the "stopping work of up to 10 minutes on each occasion". Little insight is given by that phrase. The ordinary grammatical sense of the phrase is that the "occasion" being referred to is the occasion of wearing campaign materials or their distribution. As a result, this second, impactful part of each of the first two notified forms of industrial action could be experienced by NPT at any time across any part of its network; or it may not be experienced much or at all. The notifications do not convey any meaning of when, where, or how often the industrial action could be experienced.
[32] The product of the notifications could involve any person who is a member of United Voice or the ANMF without prior notification. It may be one of those members, or all 109 employees disclosed on the roll of voters, or any number of members between the lower and upper limits. It might happen once on a shift in one branch. It might happen 20 or 100 times in one branch or 24 branches. The "stopping work of up to 10 minutes on each occasion" might happen continuously throughout one individual shift for one employee at one branch so that the entirety of their time at work was taken up by the stoppages for up to 10 minutes duration. It might continuously involve all members of the two unions at all branches in which they are represented. Or it may just be some of those branches and some of the members.
[33] Plainly NPT's capacity to predict and respond to such a circumstance would be difficult. It would likely have difficulty even preparing contingency plans for the eventuality of what actually took place especially if it was worse than it may have anticipated. What does it prepare for? A minor disruption by a few employees in a handful of locations, which has no real impact on the running its business that day? Or does it prepare for the worst case scenario of a fifth or a quarter of its business grinding to a halt with all 109 employees on the roll of voters continuously stopping for brackets of 10 minutes, one after the other for the entire shift, explaining their position to interested patients, family and the public?
[34] NPT's submissions on the matter included that consideration of its actual or possible response should not be a matter for determination by the Commission, but rather the focus must be on the language of what was notified. It put forward that the use of imprecise and non-specific language by United Voice and the ANMF meant that it could not predict and therefore not prepare.
[35] In Telstra, the Full Bench found that s.414(6) of the Act is cast in "more positive terms" than predecessor legislation.[13] In effect, the present provision requires a notifier to positively specify the nature of the action not merely state it to those receiving the notice. Because there is no certainty as to the scope of what is being notified to NPT in these first two elements, NPT submits that these two elements should not be regarded as conforming with the requirement that United Voice and ANMF have specified the nature of the action to be taken.
[36] I agree that the language used by the unions in these two notified forms of industrial action is insufficiently specific. This is not a situation in which an unduly technical approach is taken to the language, and the problem with the notification is not resolved by accepting that the notification is framed in "ordinary industrial English".[14] The uncertainties cast by the language are not removed by having regard to how the words of the notification may be used in practical workplaces by practical employees.
[37] It is to be noted that both the first and second notified forms of industrial action are in identical terms to the question put to the employees in the protected action ballot. In some cases - even in the case of other notified forms of industrial action in this matter - this may be appropriate and no particular problem arises. However, within the context of this matter and these questions and notifications, the failure to provide further detail to the employer is a serious, but entirely avoidable mistake. While it is that the language of the protected action ballot authorises the industrial action (s.409(2)), there is an expectation that greater detail will be provided when an industrial action notification is given. This expectation was articulated by the Full Bench in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union.[15] After considering the scope of the legislated term "industrial action" as it was discussed by Tracey J in Ambulance Victoria v United Voice,[16] which is not directly relevant to the matters in question in this case, the Full Bench turned to the different roles of a question posed to voters in a protected action ballot and a notification to an employer of a industrial action after a successful ballot:
"[43] The central question that required resolution in Ambulance Victoria was whether one of the forms of industrial action about which notice was given by the bargaining representative pursuant to s.414 of the FW Act constituted industrial action of a kind that was protected by s.515. Section 414 of the FW Act provides that before a person engages in an employee claim action for a proposed 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" (our emphasis).
[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.""
[38] NPT argued that greater uncertainty and confusion arising from the notices because the notifications were the subject of simultaneous and identical notifications from United Voice and the ANMF should be taken into account in considering whether the notices have complied with s.414(6) of the Act. There is no direct evidence on the subject and so I am not persuaded that this feature of the notifications affects whether or not they have sufficiently specified the action to be taken.
[39] I have considered the argument that the failure to provide an end date on the notifications compounds any uncertainty there may be about the industrial action to be taken or whether it makes it more difficult for NPT to respond, however I do not find that such is the case. For the reasons indicated above, it may well be that the action, if otherwise allowed, might continue for some time and form part of the "inconvenience and expense" to an employer inherent in any industrial action. The failure to provide a cessation date within the notifications does not, in this case, lead to a finding that the notices do not conform with s.414(6) of the Act.
[40] In relation to the understood effect of the notifications of the first and second forms of industrial action, whereas the relevant words from the United Voice and ANMF protected action ballot are framed permissively, giving scope potentially for a range of actions in a range of settings, there has been a failure to give greater clarity in the first and second forms of notified industrial action. In framing the notifications for those forms, and deciding there would not be a departure from the words of the ballot, United Voice and the ANMF have failed to recognise that greater clarity in describing the action to be taken will be required. Their failure to do so, in the overall context of the subject of the notification, the work their members perform and NPT's operations renders the notifications noncompliant with the obligation they specify the nature of the intended action. The notifications of these two forms are therefore not notifications of protected industrial action and an order requiring the forms to stop or not take place must be issued.
[41] The third form of notified industrial action is the subject of an undertaking from United Voice and the ANMF that neither will pursue the action (but reserving the right to re-notify the same or similar action in the future. Accordingly, no further consideration is required to be given to the status of the third form of notified industrial action.
[42] The fourth and fifth forms of notified industrial action are in the following terms;
"• All staff to return to their designated branch for lunch.
[43] NPT argued that the fourth form, concerned with all staff returning to their "designated branch for lunch" is problematic since employees do not have designated branches and the term "lunch" lacks precision. Mr Truman's evidence was that the shifts employees were given, whether permanent or casual, were shifts out of a designated branch and that locational permanency was one of the company's rostering principles.[17] United Voice and the ANMF argue that the term "lunch" lacks no understanding in ordinary industrial English, with the presently operative enterprise agreement providing for meal breaks.
[44] I note the terms of clause 20(a) of the currently applicable Agreement provides "Employees are entitled to a 30 minute paid meal break for each rostered shift and such break will be provided no later than 5 hours from commencement of the shift". I note also that an important feature of bargaining between the parties, and the subject of conferences before me, is a claim from NPT for the meal break to be unpaid.
[45] The notification from the unions that all staff will "return to their designated branch for lunch" lacks no precision at all in the context of these parties and their bargaining. I have no doubt that each knows precisely what it means and that NPT will be able to respond. "All staff" lacks no clarity - it means all staff. Equally, "designated branch" lacks no certainty - the context of rostering is that staff have a designated branch with rostering proceeding on the basis of locational permanency, whether it be for that roster period or longer. "Lunch", according to the Macquarie Dictionary means either "a meal taken at midday or shortly after" or "a snack or light meal taken at any time of day".[18] I have no doubt that the unions, their members and NPT similarly accord the term these ordinary industrial English meanings.
[46] While no doubt it would be inconvenient or disruptive to a business for all staff to return to the designated branch for lunch when presently that is not the case, that is probably the point of the notification and it is no doubt in comity with the observations of Barker J in Alcoa. Fulfilment of the notification may well be inconvenient and disruptive to NPT, but it is hardly incapable of development of a response.
[47] There is no significant evidence before the Commission as to the impact of a ban on completing the small blue Patient Care Records. It cannot be regarded on the basis of what is before the Commission that NPT is unaware of what a ban on work associated with these records may mean, or how it should respond to the ban.
[48] The notifications provided on the fourth and fifth forms are sufficiently specific for NPT to develop its response or to consider alternatives. The notifications conform with the obligations of s.414(6) of the Act. No order will be issued in relation to those forms.
[49] On the basis of the foregoing analysis, I find that for the reasons expressed, the first and second forms of notified industrial action do not comply with s.414(6) of the Act. I also find that the reasons expressed that the fourth and fifth forms of notified industrial action do comply.
[50] Because I found that at least some of the notified industrial action is or would not be protected industrial action I am required to make an order pursuant to s.418(1) of the Act. In the circumstances, the order to be made by the Commission will be limited to the first and second forms of notified industrial action. No order will be made in respect of the fourth and fifth forms of notified industrial action. Because of the undertaking given by United Voice and the ANMF, it is unnecessary to further consider the third form.
[51]
Consistent with these reasons for decision, an order was issued by me on 12 April 2018 which came into effect at 1.00 PM on that day, with it remaining in force for one week.[19]
Mr E. White of Counsel for the ANMF and United Voice.
[5] We note Justice Burchett's dissent but that it was on a matter not relevant to this appeal - he agreed with the majority on all other matters.
[11] [2010] FCA 278, (2010) 196 IR 103, [35].
[12] [2017] FWCFB 4740, [38] - [39].
[13] Telstra v CEPU [2009] FWAFB 1698, (2009) 190 IR 342, [12].
[14] Davids Distribution Pty Ltd v National Union Of Workers [1999] FCA 1108, (1999) 91 IR 198, [88].
[18] The Macquarie Dictionary Online, https://www.macquariedictionary.com.au, accessed 12 April 2018.
Printed by authority of the Commonwealth Government Printer
National Patient Transport Pty Ltd T/A National Patient Transport
United Voice; Australian Nursing and Midwifery Federation [2018] FWC 2068
(1996) 67 FCR 464
(1997) 75 FCR 274
(1999) 91 FCR 463
(2010) 196 IR 103
(2009) 190 IR 342
(1999) 91 IR 198