[2009] FWA 44

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FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action

Ambulance Victoria
v
Liquor, Hospitality and Miscellaneous Union
(B2009/10333)

SENIOR DEPUTY PRESIDENT KAUFMAN

MELBOURNE, 3 AUGUST 2009

Section 424 application to suspend or terminate protected industrial action – threatening to endanger the life, etc. of the population or part of it – would threaten – what protected action terminated – effect of termination - s.19 – s.408 – s. 415.

PREAMBLE

On 20 July 2009 I terminated protected industrial action that was being engaged in for the purpose of supporting or advancing claims made in relation to a proposed enterprise agreement between the Liquor, Hospitality and Miscellaneous Union (LHMU) and Ambulance Victoria. I delivered oral reasons for my decision and indicated that I would publish edited and, perhaps, expanded reasons. These are my reasons.

THE APPLICATION

[1] Ambulance Victoria applied, pursuant to section 424(1) of the Fair Work Act 2009, for an order “terminating protected industrial action for a proposed enterprise agreement”. The basis of the application was that protected industrial action was threatened, impending or probable and it would threaten to endanger the life, the personal safety or health or the welfare of the population or a part of it. Section 424 is in the following terms:

[2] It can be seen that Ambulance Victoria relies on subsections (1)(b) and (c) of section 424. If I am satisfied as to the circumstances set out in those subsections, I must make an order terminating or suspending the protected industrial action.

BACKGROUND

[3] The background to the application has been set out in grounds 1 through to 9 of the grounds supporting the application, which I set out verbatim:

Grounds

Background

Negotiations for an enterprise agreement

Industrial Action

[4] It is the protected industrial action notified by the LHMU on 16 July 2009 of the intention to take four hour stoppages on Wednesday, 22 July 2009, that it is said by Ambulance Victoria to be the protected industrial action that attracts section 424(1)(c).

[5] The application was filed on Friday, 17 July 2009 and, after hearing the parties, I decided not to accede to Ambulance Victoria's request to have the matter dealt with as a matter of urgency on Saturday, 18 July 2009. I listed it for Monday, 20 July 2009 at which time Mr F Parry, SC and Ms J McLean of counsel appeared for Ambulance Victoria and Mr C Dowling of counsel appeared for the LHMU, the organisation that is one of the negotiating parties and which had organised the protected industrial action.

[6] At the outset of the proceedings the LHMU sought that I disqualify myself from dealing with the application. The basis of this was that, as I had been involved in conciliation proceedings to attempt to broker an agreement between the parties, an impartial observer might think that I might not be able to bring an independent mind to bear on the issue of the termination of the industrial action. I declined to recuse myself and delivered oral reasons for my decision not to do so.

THE PROTECTED INDUSTRIAL ACTION

[7] In opening his case, Mr Parry informed me that Ambulance Victoria employs some 3000 ambulance paramedics, 270 mobile intensive care ambulance paramedics, or MICAs, in the Melbourne metropolitan area and 200 MICA paramedics in rural Victoria. There are 93 metropolitan and 120 rural branches from which ambulances operate. These, he said, are placed to ensure the most efficient ambulance response.

[8] It is trite to say that Ambulance Victoria is primarily concerned with transporting injured or ill people to hospitals. Ambulances are usually despatched by the emergency services and those calls are categorised by three codes. Code 1 calls are life-threatening critical cases requiring an urgent and immediate response, code 2 cases are urgent and a response is desired within 20 minutes, and code 3 cases are non-urgent, often planned transport cases.

[9] Mr Stephen McGhie, the secretary of the ambulance section of the LHMU gave sworn evidence. He indicated that three sets of bans had been implemented in June 2009 with further protected action being notified on 13 July 2009. That proposed industrial action resulted in an application under s.424 being made; but after the ban in question was withdrawn, the hearing did not proceed.

[10] Late on Thursday, 16 July 2009 the LHMU notified Ambulance Victoria of its intention to implement staggered four hour stop work meetings at certain locations to commence at 6.30 am on Wednesday, 22 July 2009. It is these bans that Ambulance Victoria submitted would threaten to endanger the life, the personal safety or health or the welfare of the population or a part of it.

[11] In support of its application Ambulance Victoria called William James Barger, the acting manager, metropolitan logistics. Mr Barger has been employed by Ambulance Victoria and its predecessor, Metropolitan Ambulance Service, for over 29 years. He has been in his acting capacity since April of this year. In that position he is responsible for overseeing rostering, Ambulance Victoria's presence in the emergency communications centre and other functions. His evidence was directed at the effect that the proposed bans would have on the delivery of ambulance services.

[12] The proposed four hour stop work meetings were detailed in the letter to Ambulance Victoria dated 16 July 2009. Those bans are additional to those that had been notified on 13 July 2009 and which are also listed in the letter. That letter was attached to Mr McGhie's witness statement and ground 9 of the application reformats the bans in their order of commencement time in the metropolitan and rural branches. From those documents it can be seen that strike action was proposed at 25 metropolitan branches, seven MICA metropolitan services and 18 rural branches. Thus it would appear that some 25 per cent of metropolitan branches and 15 per cent of rural branches would have been affected.

[13] Mr Barger was taken to some examples of the branches where industrial action was to be taken in order to demonstrate the impact that the proposed strike was likely to have. Caulfield, Windsor and MICA 2 were scheduled to strike for four hours from 7 am on Wednesday, 22 July 2009. Caulfield and Windsor are single ambulance branches. The three units regularly respond in a similar geographic area, which, according to Mr Barger, is a busy area. On Wednesday, 15 July 2009, between the hours of 7 am and 11 am, those branches attended at seven cases between them. According to Mr Barger, if MICA 2 is out of action, MICA 10 from Centre Road, Moorabbin and MICA 3 from Footscray can be called upon as could a single paramedic responder from Cabrini Hospital. The single responder attends in a non-ambulance vehicle and cannot transport patients.

[14] If the Caulfield branch were to be out of action, crews would be sought from Bayside, Highett, South Melbourne or Port Melbourne. Windsor being out of action would exacerbate the situation if Caulfield were also out of action. Such a situation would put pressure on response times in the area bounded by Dandenong Road, Brighton Road and parts of Caulfield. Mr Barger gave evidence to like effect in relation to other branches subject to the proposed 7 am action: Hillside and Melton. Each of these branches attended to three cases between 7 am and 11 am on Wednesday, 15 July 2009.

[15] MICA 9 had also intended to stop work between 7 am and 11 am on Wednesday. It provides services along the Princes Freeway towards Werribee and suburbs abutting the ring road and towards the western highway as well as St Albans, Sunshine, Laverton, Altona Meadows and Point Cook, an area with heavy traffic, especially during the morning peak. If MICA 9 is out of action, the nearest intensive care units are MICA 13 or MICA 3. According to Mr Barger, the time for these units to attend a situation to which MICA 9 would normally attend would be lengthened. On Wednesday, 15 July 2009, MICA 13 attended at three cases between 7 am and 11 am.

[16] Cheltenham was due to stop work at 7.30 am on Wednesday, 22 July 2009. That would have limited Mr Barger's options, he says, as to which vehicles he could have moved to provide cover in that, as well as the Caulfield-Windsor, area. He conceded in cross-examination that 7 am tends to be a quieter period than later, but as can be seen from the table at ground 9 of the application, other branches come on stream at 7.30 am and then at 9 am to cope with increased demand.

[17] Eight branches and three MICAs were due to commence their stop work at 5 pm. This concerned Mr Barger as nightshift commences at that time and there is significant changeover activity that, in his view, would lengthen the time required to move ambulances around to try to cover those not working.

[18] Some further elaboration of the effect of the bans was given in relation to other branches. Mr Barger said that Ambulance Victoria would try to deal with the proposed stoppages of work primarily by relocating resources and also by seeking to utilise non-operational paramedics as well as management personnel. It would try to replace shifts by calling back non-rostered paramedics, but Mr Barger was not confident of their cooperation, given the union's exhortation in its bulletin dated 17 July 2009 that:

[19] Mr Barger eschewed the possibility of asking night crews who finish a 14 hour shift at 7 am to work overtime for four hours to cover the banned shifts.

[20] In Mr Barger's view, no matter what ameliorating action Ambulance Victoria might take, if the four hour strikes were to go ahead, response times would be extended. He gave limited evidence as to the impact of that action in rural areas, it not being within his expertise or detailed knowledge. He did say, however, that where two crews are rostered, he understood from the LHMU that only one of those would be banned. Generally, in all but one rural region, according to Mr McGhie, there are two crews rostered.

[21] On Wednesday, 15 July 2009, the Wonthaggi branch attended to three cases. The nearest back-up to Wonthaggi is a single response officer at Korumburra or ambulances at Cowes or Leongatha, each of which would result in a 25 minute delay, according to Mr Barger. In cross-examination he conceded that action beyond that of which he had spoken could be taken to mitigate the effects of these strikes. However, in his view, no matter what action were to be taken by Ambulance Victoria, response times would be lengthened.

[22] It was put to Mr Barger that during the past six months 175 shifts had not been filled by Ambulance Victoria. He conceded that although he did not have the statistics, this was possible. He also accepted that at the time he was giving his evidence, he did not know precisely what action Ambulance Victoria would take to reduce the impact of the proposed industrial action. However, he remained of the view that adequate coverage could not be provided.

[23] Mr McGhie stated that the locations and times for the proposed industrial action had been carefully and strategically selected so as to allow for a good spread of coverage from other areas. According to Mr McGhie, the action was designed to cause administrative havoc for Ambulance Victoria whilst allowing it to rearrange resources to provide adequate ambulance coverage.

[24] Mr McGhie gave evidence of the number of shifts he has been told had not been filled in the past to support his contention that Ambulance Victoria regularly provides adequate service without all of its shifts operating. However, the reasons for this were not given and I could not be confident that shifts that might not be filled could or would be filled so that the effects of the proposed action might be lessened. The fact that shifts have not been filled in the past does not necessarily lead to the conclusion that those shifts could be filled so as to provide cover for the shifts participating in industrial action.

[25] Mr McGhie suggested that the use of ambulance community officers, community emergency response teams and clinical support officers would enable Ambulance Victoria to provide adequate coverage on the day. He also analysed the number of shifts that would be lost in order to demonstrate that, having regard to their numbers, locations and starting times, the dislocation to the ambulance services provided by Ambulance Victoria would not be such as to trigger the operation of section 424.

[26] There is no dispute between the parties that industrial action for a proposed enterprise agreement was threatened, pending and probable. That action was to commence on Wednesday, 22 July at 6.30 am. The first requirement of section 424 is met. If I am satisfied, having regard to the evidence, that that action would threaten to endanger the life, the personal safety or health or the welfare of the population or part of it, I must by order suspend or terminate the industrial action. I have no discretion.

CONSIDERATION

[27] Ambulance Victoria sought an order that I terminate the action. The LHMU opposed the order but did not submit, in the alternative, that I should suspend rather than terminate the proposed protected action. In the circumstances I only considered whether to terminate the action. Aside from the parties' tacit agreement that that was the question I needed to decide, it seemed to me, in circumstances where negotiations have been going on for so long and various forms of protected industrial action have already been taken, that termination rather than suspension was the appropriate course should I be satisfied as to the relevant endangerment.

[28] Both parties referred to F & Others v National Crime Authority 1, on how the expression "would threaten to endanger" should be interpreted. In that case, O'Loughlin J had to consider the meaning of the expression "might tend to incriminate". At page 110 his Honour said:

A little further on:

Again a little further on:

[29] I intend to approach this matter on the basis of probabilities rather than possibilities. It need also be pointed out that I must be satisfied that the protected action would threaten to endanger, not would endanger. The New Shorter Oxford English Dictionary relevantly defines "threaten" as:

[30] Threat is relevantly defined as including:

[31] In 2004 I dealt with an application by the Metropolitan Ambulance Service, now part of Ambulance Victoria, to terminate a bargaining period initiated by the LHMU. The application then was made under the provisions of the Workplace Relations Act 1996. The terms of that legislation, although not identical with section 424, have sufficient similarity, at least insofar as the preconditions for attaining the relevant satisfaction are concerned, to enable regard to be had to decisions dealing with that legislation, always bearing in mind the differences.

[32] In my reasons, to which both parties have referred, I dealt with the meaning of the words "welfare" and "endanger". I repeat what I said at paragraphs 61 to 64:

[33] I also repeat what I said at paragraph 70:

[34] Here the threatened, impending or probable protected industrial action, that it was said would threaten to endanger the life, the personal safety or health or the welfare of the population or part of it, is the four hour stop work at various branches that was proposed to commence at 6.30 am on Wednesday, 22 July 2009.

[35] On the evidence, I was satisfied that it was probable that protected industrial action would have increased the response times of ambulances, not only in the areas affected by the strikes, but also more generally where assets might be deployed to cover the banned branches. This is despite the best endeavours that Ambulance Victoria might take to minimise the impact of the protected industrial action. Delayed responses by ambulances would have threatened to endanger the welfare of those awaiting them. In severe cases the delay would have threatened the life of a person needing urgent medical attention where minutes can mean the difference between life and death. My having attained that degree of satisfaction, section 424 requires that I make an order to suspend or terminate the protected industrial action. As I have discussed, in the circumstances of this case, termination rather than suspension is appropriate.

WHAT PROTECTED INDUSTRIAL ACTION IS TERMINATED

[36] A question has arisen as to what is the protected industrial action that is being terminated. Mr Parry contended that it is the industrial action the subject of my order made on 3 July 2009, being that industrial action that was authorised by the protected action ballot declared on 4 June 2009 under section 478 of the Workplace Relations Act 1996. In other words, the order would bring to an end all of the protected industrial action that the LHMU is taking, and can take, to support its case for the proposed enterprise agreement. For the LHMU, Mr Dowling contended that it was only the four hour strikes planned for Wednesday, 22 July 2009 that could be the subject of the termination order. Such an issue did not arise under the previous regime because the order then was to terminate a bargaining period with the consequence that there could no longer be any protected industrial action.

[37] Mr Parry submitted that although bargaining periods are no longer part of the legislative scheme, the mechanism of the Fair Work Act 2009 is designed to replace the scheme for terminating bargaining periods. On the other hand, Mr Dowling submitted that the protected industrial action, the subject of this application, is only that which was scheduled for Wednesday, 22 July 2009. That is the only action about which I had evidence and that is the action that is the subject of the application to terminate. According to Mr Dowling, I can only terminate that protected industrial action that was threatening to endanger, etc. In other words, I can only terminate the protected industrial action comprising the four hour stoppages.

[38] I have been referred to the explanatory memorandum which only provides limited assistance. At paragraph 1707 it states:

[39] Division 3 of Part 2-5 of Chapter 2 of the Fair Work Act 2009 deals with industrial action related to workplace determinations. Section 266 provides:

[40] It appears to me that although the legislation is different, the scheme of the Fair Work Act 2009, in this respect, is similar to that of the Workplace Relations Act 1996. Once protected action, or previously a bargaining period, is terminated, an arbitrated settlement will be imposed upon the parties, now by Fair Work Australia, then by the Australian Industrial Relations Commission. Section 267 of the Fair Work Act 2009 deals with the terms of an industrial action related workplace determination.

[41] I agree with Mr Parry that the interpretation for which Mr Dowling contends is too narrow. If such a fundamental change had been intended to be wrought, one would have expected that to have been clearly articulated. The scheme of the Act now provides for a 21 day period for the parties to reach agreement before an arbitrated outcome is imposed upon them. Rather than the threat of strike and lockout, the parties now face the threat of having terms and conditions imposed upon them by an outside body – Fair Work Australia.

[42] That seems to me to be the imperative envisaged by section 266 of the Fair Work Act 2009 for the parties to reach agreement. In that scheme it is unlikely that the parliament intended that protected industrial action could take place during the 21 day post-industrial action negotiating period. That 21 day period, in my view, is to be just that – post-industrial action.

[43] The order I made terminated the industrial action identified in my order of 3 July 2009, being the industrial action approved by the protected action ballot declared on 4 June 2009.

POSTSCRIPT

[44] Grammatically, it seems odd to speak of terminating industrial action, whether it be protected or not. Thus, some analysis as to what it is that is being terminated is required. As no submissions were addressed to this issue I will cautiously express some tentative views.

[45] Industrial action is defined in section 19 of the FW Act, and includes action of the kind that is the subject of these proceedings.

[46] Industrial action becomes protected industrial action if, relevantly, it is employee claim action under section 409 of the FW Act.

[47] The importance of industrial action becoming protected industrial action is that, under the immunity conferred by section 415, no action lies under any law in force in a State or Territory in relation to any industrial action that is protected industrial action, other than in certain specified circumstances.

[48] It appears to me that the termination of protected industrial action under section 424 of the FW Act has the consequence that the protection that was provided under section 415 is removed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr F Parry, SC and Ms J McLean, of counsel, for the applicant

Mr C Dowling, of counsel, for the respondent

Hearing details:

2009.

Melbourne:

20 and 21 July

 1   [1998] FCA 393

 2   Metropolitan Ambulance Service and Liquor, Hospitality and Miscellaneous Union PR950276

 3   Ibid.




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