The connection between the proposed action and the
employee's normal duties will be scrutinised
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  FCA
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
All in a day's work?
AEA argued that the data release would be protected because it
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
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
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
The breach of the contract of employment that would occur was
"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
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
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.
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 bulletin.
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