Note: An appeal pursuant to s.604 (C2009/11280) was lodged against this decision - refer to Full Bench decision dated 14 April 2010 [ FWAFB 1014] for result of appeal.
 FWA 1535
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
ADELAIDE, 4 DECEMBER 2009
Application for an order to suspend or terminate protected industrial action by NTEU.
 On 1 December 2009 the University of South Australia (USA) lodged an application pursuant to section 424 of the Fair Work Act 2009 (the Act), through which it sought the suspension of protected industrial action being taken by the National Tertiary Education Union (NTEU).
 The application was the subject of an extensive hearing on 3 December 2009 in Adelaide, with a video-link to Melbourne. The USA was represented by Mr Wedgwood of the Australian Higher Education Industrial Association (AHEIA). The NTEU was represented by Mr White, of counsel.
 The USA is seeking a suspension of protected industrial action for a period of one month. Whilst the application specifies the range of protected industrial action currently being taken, two specific bans instituted following a secret ballot, form the basis for the orders sought.
• A ban on the recording and transmission of the University, of assessment and exam results from 9am on Tuesday 29 September 2009 by NTEU members of the School of education, in the School of Nursing and Midwifery, in the International Graduate School of Business, in the Centre for Regional Engagement and in the School of Communication, International studies and languages.
• A ban on the recording of transmission to the University, of assessment and exam results from Friday 30th October 2009 by members of the NTEU employed by the University of South Australia in the class described in a protected action ballot order.”
 The USA application is made on the grounds specified below:
“1. This application relies on the provisions of section 424(1) of the Fair Work Act 2009.
2. The protected industrial action is currently being engaged in, as required by section 424(1)(a).
3. The protected industrial action has threatened, is threatening and will threaten to endanger the personal health and the welfare of part of the population, namely the students of the University of South Australia, as required by section 424(1)(c).
4. The NTEU ban on examination results has already threatened and is threatening to endanger the personal health of the students, as it has created and continues to create stress for students who face uncertainty about whether they will receive their results, whether they will be able to graduate, and whether they will be able to obtain employment in their chosen career. This is occurring at the most stressful time of the academic year for the students, namely the examination period. This is especially so for those international students who expect to graduate, and whose future employment and potential continuing residence in Australia is contingent on receipt of their results and documentary evidence of graduation.
5. In addition, the ban is threatening and will threaten to endanger the welfare of all graduating students by prejudicing their future employment prospects and careers, perhaps irreparably.
6. Further, it will threaten to endanger the welfare of other students who are seeking to transfer between courses, as it may deny them the opportunity to gain access to the course which will provide their future chosen career.”
 By way of background, I note that on 23 November 2009 the USA made an application for an order that industrial action stop, pursuant to section 418. This application was refused in a decision 1 issued on 25 November 2009. The USA advised that since that date it has endeavoured to have the bans lifted through negotiation.
 Further, I have sought advice from the parties as to the status of the negotiations. It appears that there are at least six significant areas of difference despite the negotiations extending over almost all of 2009. To the extent to which it is relevant, I have taken it that there is no immediate prospect of an agreed resolution to the issues in dispute.
 The USA called four witnesses:
1. Dr Ciccarelli: the Pro Vice Chancellor and Vice President of International and Development at the USA;
2. Professor McCutcheon: the Head of the School of Nursing and Midwifery at USA;
3. Associate Professor Boyle: the Acting Head of the School of Management in the Division of Business which includes the Schools of Commerce, Management Marketing, Law and the International Graduate School of Business at the USA; and
4. Mr Tabor: the Director of Student and Academic Services at the USA.
 The NTEU called Mr Rouse, a USA Lecturer in the School of Nursing and Midwifery. Mr Rouse is the Acting President of the NTEU University SA Branch.
 In reaching a conclusion relative to this application I have considered all of the evidence before me, together with the various authorities to which I was referred.
 Section 424 states:
Suspension or termination of protected industrial action
(1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by any of the following:
(i) a bargaining representative for the agreement;
(ii) the Minister;
(iii) a person prescribed by the regulations.
Application must be determined within 5 days
(3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made.
(4) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.
(5) An interim order continues in operation until the application is determined.”
 The USA position is that the ban on recording and transmission of assessment and exam results has, and is, and would threaten to endanger the personal health, or the welfare of USA students and, in some cases, their families. The USA position is broadly based on the following:
 The NTEU position is that the application must be considered on the basis of the specified grounds and that these assertions were not supported by the evidence put to Fair Work Australia.
 The NTEU asserts that section 424 requires consideration of specific protected industrial action to determine whether there should be a suspension of specified protected industrial actions. Accordingly, the mandatory jurisdiction in section 424(1) is only alive if Fair Work Australia identifies an action which has the effect complained of. The NTEU asserted that no such action had been identified and that, accordingly, no suspension or termination was possible.
 Further, and in the alternative, the NTEU argues that it has established an exemption process which has approved all of the applications that have been made to it. The NTEU argues that USA has not promoted use of this exemption process and that, accordingly, it cannot now seriously assert that a significant threat exists pursuant to section 424.
 The NTEU has confirmed that it has provided advice to USA and has published an advertised notice that the ban will be lifted on 14 December 2009 for all graduating students such that, whilst there may be additional administrative efforts required by the University, the graduation and academic transcript production processes would still be undertaken with no, or minimal delays.
 The NTEU also asserts that, unlike its predecessor provision, section 424 enables and requires the differentiation of protected industrial action such that, if a suspension would be countenanced, this should only apply to specified actions.
 Finally, the NTEU argue that in the event that a suspension order was made, account should be taken of the circumstances of its members in the consideration of service of, and compliance with, that order.
 It is convenient that I look firstly at the operation and effect of section 424.
 The Act does not preserve the concept of bargaining periods which have underpinned earlier legislative provisions which address circumstances which are similar, but not necessarily identical to those set out in section 424.
 This gives rise to a question about the extent to which an order to suspend or terminate protected industrial action is necessarily applicable to all protected industrial action as distinct from specified forms of action.
 In Ambulance Victoria v LHMU 2 Kaufman SDP addressed this issue in the context of a decision to terminate protected industrial action, in the following relevant terms:
“ 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.
 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.
 I have been referred to the explanatory memorandum which only provides limited assistance. At paragraph 1707 it states:
Suspension or termination of protected industrial action brings to an end the right to take protected industrial action.
 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:
When FWA must make an industrial action related workplace determination
(a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and
(b) the post industrial action negotiating period ends; and
(c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;
FWA must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period.
(2) A termination of industrial action instrument in relation to a proposed enterprise agreement is:
(a) an order under section 423 or 424 terminating protected industrial action for their agreement;
(3) The post-industrial action negotiating period is that period that:
(a) starts on the day on which the termination of industrial action instrument is made; and
(i) 21 days after that day; or
(ii) if FWA extends that period under subsection (4) – 42 days after that day.
 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.
 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.
 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.”
 I agree with this approach. Whilst His Honour in that matter concluded that a termination of protected industrial action was appropriate, the adoption of a different approach to the concept of protected industrial action where a suspension is being countenanced would be illogical given that section 424 provides for either suspension or termination. It appears to me that not withstanding that NTEU members endorsed the taking of a variety of forms of protected industrial action, the Act requires that a suspension or termination of protected industrial action for the purposes of sections 424, 425 and 426 applies to all forms of protected industrial action.
 The difficulties associated with the suspension of only specified forms of protected industrial action would make these provisions practically unworkable.
 Consequently, the effect of any suspension must be to stop all protected industrial action for that period of time.
 I have considered the extent to which any conclusion about section 424(1) must be limited to the grounds detailed in the application in the context of the evidence put to me by the USA.
 Two related issues arise. Firstly there is a question of procedural fairness in that the NTEU asserts that it has presented a case in response to the grounds in the application. Secondly, the NTEU referred me to the requirement that I be satisfied as to the causative effect of the bans consistent with the principles set out by the High Court in Buck v Bavone 3.
 Whilst it is quite conceivable that issues of procedural fairness may arise such that the grounds set out in an application pursuant to section 424 are so deficient or misleading that the respondent bargaining agent is fundamentally disadvantaged, I do not consider that this represents such a situation.
 The grounds relied upon in the application make it clear that the University relies generally on section 424(1). Further, the detailed grounds require consideration, on all the evidence, but the fundamental task is to determine whether the circumstances set out in section 424(1) are met. In this instance, I am satisfied that it would be inconsistent with the proper exercise of the Fair Work Australia functions to inherently limit any consideration of the circumstances to just the matters detailed in the last three grounds of the University’s application as it is clear that both parties have argued this application on the basis of section 424 generally.
 There is a clear onus on the USA to establish a causal link between the protected industrial action being taken by the NTEU and the circumstances that satisfy subsection 424(1)(c). I have considered the evidence before me in this respect.
 In terms of section 424(1) I am satisfied that protected industrial action is being engaged in at the present time. I have considered whether the bans on recording and transmission of assessment and examination results have, or are, threatening the personal health or welfare of graduating students.
 I am not satisfied that the evidence before me goes to establish or prove any threat relative to the families of graduating students. Further, although the ban affects a broader range of students, the primary evidence put to me relates to graduating students only. As a consequence, the part of the population which I have directed my attention are the USA graduating students only.
 In Ambulance Victoria Kaufman SDP considered the common meanings to be attached to "threaten”. I adopt this position such that a threat constitutes the likelihood of injury or a source of harm or danger.
 I am satisfied that the evidence of Dr Ciccarelli and Professor McCutcheon establishes that there are administrative deadlines by which assessment results must be recorded in order to ensure that other administrative tasks and academic certification functions can be undertaken to guarantee that academic records and graduation processes meet the University’s predetermined time commitments.
 The evidence indicates that it may be that a delay in the provision of this information until on or after 14 December 2009 can be made up by the USA, but I am not persuaded that this is so definitely the case that there is no significant threat to this effect. I have particularly noted the position put by Mr Rouse, but Mr Rouse is not a university administrator and his evidence does not categorically establish the administrative effect of the bans or that the administrative and academic checking functions can in fact be undertaken in a shorter time. This applies to graduating students generally, but particularly Nursing graduates where the academic input deadline is 8 December 2009.
 I have adopted the position that the concept of “health” deposed in the Macquarie Dictionary goes to the "general condition of the body or mind with reference to soundness and vigour."
 Along with Kaufman SDP in Ambulance Victoria, I have adopted the definition of "welfare" and the overall phrase in section 424(1)(c) adopted by a Full Bench of the Australia Industrial Relations Commission in State of Victoria v HSUA 4 relative to the then current provisions of the Workplace Relations Act 1996.
"During the appeal little was put to us as to the meaning of these words in s.170PO(1)(b)(i). ANF, however, submitted that the word "welfare" should be read ejusdem generis with the preceding words ("life ... personal safety ... health") and thus be restricted to situations where life, personal safety or health was endangered. We disagree. In our view, there is no basis for so reading the word "welfare". The Macquarie Dictionary (2nd edition) defines welfare as "the state of faring well; well-being". We see no reason why the word "welfare in s.170PO(1)(b)(i) should have other than its ordinary meaning. The whole of the passage "the life, the personal safety or health, or the welfare, of the population or of part of it" comprises common words and we do not think it helpful to attempt to define them. It will be a matter for the Commission, in each case before it, to determine whether or not it is satisfied that industrial action is threatening to endanger the life, the personal safety or health, or the welfare, of the population or of part of it."”
 The concepts of “welfare of the population” in the context of an assessment of a threat were also considered by a Full Bench of the Australian Industrial Relations Commission in Coal & Allied Operations Pty Ltd 5 in the following terms:
“The ordinary meaning of the expression "the welfare of the population" is a general invocation of the considerations that go to the well being of the total number or body of the inhabitants of Australia. Any application of the expression to action threatening to endanger the welfare of a "part of" the population must give adequate meaning to the generally inclusive character of the total number or body of the inhabitants inherent to the term "population". There is a grammatical infelicity in the wording of the paragraph. Danger to the life, or to the personal safety or health, of "a part of the population", instead of to individuals, appears a cumbersome form of expression. But that awkwardness is no barrier to giving the reference to a part of the population its more collective meaning when it is found in the expression "welfare of the population". Moreover, despite the generality of the concept "welfare of the population", the phrase "is threatening to endanger" imports a requirement for there to be a danger or peril to welfare. There needs to be a basis upon which it is reasonable to conclude, on an assessment of matters of fact and degree, that the collective welfare is in peril or danger.”
 Whilst this decision ultimately proceeded to the High Court, this finding was not challenged.
 I have noted that the University elected not to promote the existence and hence the use of the NTEU Exemptions Committee. It may be the case that actions taken, or not taken by an employer in response to protected industrial action affect the extent to which a necessary causal link between the action and the threat can be made out. In this instance however, I am satisfied that the NTEU Exemptions Committee was a union committee and that the University had a sufficient basis upon which to conclude that it should not refer all students to that committee in order to seek an exemption from the union's industrial action. I have noted that the evidence is that the Committee approved all of the 240 exemption applications put to it. I am satisfied that the operation of the Committee was not established such that the University could refer to all students to this Committee with any substantial confidence and that the sheer volume of student numbers made this impractical given the NTEU’s refusal to agree to blanket exemptions. Further, that such a referral was inconsistent with the role of the University as the employing academic institution.
 The evidence of Associate Professor Boyle was that the ban on recording and transmitting examination results created a high level of uncertainty and heightened stress at this stage of the academic year. Whilst I consider this to be a likely consequence of the ban, I am not satisfied that the University has proven that a significant number of its students are aware of that ban or that, from a student perspective, the ban is causing or is likely to cause stress which could reduce the health or well-being of the students.
 However, the evidence of the University witnesses collectively supports the conclusion that the capacity of students to graduate, to successfully seek additional studies or obtain supported funding or employment, could all be impacted on by a delay in the recording and transmission of examination and assessment results. As I have already noted, the University may be able to ameliorate this. I accept that the evidence is that some subject results could be provided to students the day after they were recorded. However, a failure to meet the specified time deadlines for recording and transmission of results creates a very real risk that not all of the necessary overall course academic checks and administrative processes will be completed to allow for graduation on 22 December 2009 or for the publication of academic transcripts for employment, additional study and funding and visa purposes. This risk or threat goes beyond a potential inconvenience or disruption to the graduating student population as it reflects the potential for real and actual harm.
 Consequently, I am satisfied that the protected industrial action, being the ban on recording and transmission of assessment and examination results, is threatening the welfare of graduating USA students. Accordingly, section 424(1) means that an order suspending or terminating the protected industrial action must be made.
 Because of the difference in wording between the current Act and the legislation considered by McIntyre VP in University of Wollongong v NTEIU 6, it is neither necessary, nor appropriate that I make any subjective assessment of this ban, and I have not done so.
 The USA does not seek the termination of the protected industrial action and I do not consider that appropriate in any event. I am not satisfied that a suspension of one months’ duration has been established as appropriate, and consider that a shorter two week period which encompasses the critical dates for the finalisation of academic records is more appropriate. An order [PR991510] to this effect will be published.
 This order expresses the obligation to stop the industrial action in terms which reflect the undertaking the University gave to ensure that its staff were advised of the Order.
 One final comment remains appropriate. I doubt that the order issued in this matter will progress the agreement negotiation process. Whilst that process is a matter for the parties I emphatically reject the implication that negotiations over the duration of 2009 are making good progress on the basis of an average delay, in the University sector, of 21 months from the expiry of one agreement to the making of another. This appears to me to be an undesirable statistic which goes some distance to explain the frustration which leads to protected industrial action.
 To the extent that all negotiating parties considered there was value in seeking assistance from Fair Work Australia to expedite the negotiation process, I will provide, or facilitate the provision of that assistance, as a matter of urgency. Before commencing any such process I would require a clear commitment from the USA Vice Chancellor’s office, that the University is committed to expediting an agreement.
SENIOR DEPUTY PRESIDENT
D Wedgwood representing the University of South Australia.
E White counsel for the National Tertiary Education Industry Union.
Adelaide (and video-link to Melbourne)
1 (2009) FWA 1304
2  FWA 44
3 (1976) 135 CLR 110 at 118-19
4 Print L9810
5 (1998) 80 IR 14
6 Print S1688
Printed by authority of the Commonwealth Government Printer
<Price code C, PR991503>