30 Oct 2014

Releasing internal statistics not protected industrial action, says Federal Court

by Jennifer Wyborn

The connection between the proposed action and the employee's normal duties will be scrutinised carefully.

Unauthorised release of information isn't protected industrial action, according to a recent Federal Court decision which, if followed, could limit unions' scope in future industrial disputes (Ambulance Victoria v United Voice [2014] FCA 1119).

The protected action ballot votes for the release of data

As part of a long-running dispute with Ambulance Victoria over the making of an enterprise agreement, Ambulance Employees Australia Victoria (“AEA”), a sub-branch of United Voice, conducted a protected action ballot. One of the actions approved by the ballot was that "Members who are acting/appointed Team Managers and Senior Team Managers will make all response time data for available (sic) to the media without the approval of Ambulance Victoria’s Executive General Managers.” This data is not normally released to the media; the managers only use it for their own decision-making.

Ambulance Victoria challenged the legality of this, arguing that it was not within the Fair Work Act's definition of industrial action.

All in a day's work?

AEA argued that the data release would be protected because it was:

  • 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 (section 19(1)(a)); or
  • 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 (section 19(1)(b)).

The release of data in this case not protected by the Fair Work Act

The Fair Work Commission has taken a broad view of these two sections, but Justice Tracey wasn't prepared to do so. He noted that they both refer to work performed by an employee. That means identifying the work normally performed by the relevant employees and the manner in which it is customarily performed.

In this case, the managers did not ordinarily give out statistics on ambulance response times to the media, or indeed anyone else. To hand them out, in breach of their contracts of employment, would not be performing their normal work in a manner different from that in which it is customarily performed, said Justice Tracey.

The breach of the contract of employment that would occur was significant:

"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."

If they did, he said, then sexual harassment or discrimination forbidden by employer policies could be industrial action as they would be departures from the customary manner of performance of work.

Would it limit, restrict or delay their normal duties? Justice Tracey held it would not: it would be in addition to their normal duties, and would not take any meaningful amount of time.

This case is particularly interesting in the context of the CPSU's application for a protected action ballot order at the Department of Human Services. Release of equivalent response time data at Centrelink or Medicare is also unlikely to be protected action. Indeed, unauthorised release of such data may even place an employee in breach of the APS Values of Code of Conduct and give good grounds for disciplinary action.

…but it could be in others

This decision shouldn't be read as saying any data or information release could never be industrial action. The connection between the proposed action and the employee's normal duties will be scrutinised carefully, and if the release of information is part of an employee's normal duties, a later court might take a different view.

It does mean, however, that the terms of an employment contract and any policies which limit or ban the release of information (or other conduct the employer considers undesirable) could be crucial curbs on proposed industrial action.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.