Some employees thought it would be a good idea to give the media damaging data about their employer’s capability during protected industrial action, in order to turn up the heat. However their plan was thwarted by the Federal Court which decided their intentions fell outside what would be protected industrial action.
The dispute involved ambulance drivers who had been bargaining with their employer for some time without success. The drivers decided that as part of their protected industrial action, they would issue data about ambulance response times to the media. Their employer sought an injunction to prevent that, arguing it was a breach of the drivers’ contracts and not protected action as defined in the Fair Work Act.
The drivers countered that in an FWC case, a majority full bench had permitted other employees to do this, so they argued why couldn’t they? But the federal court decision was critical of the FWC full bench relied on by the drivers. The court made the fairly obvious point that protected action had to be “the performance of their normal work in a manner different from that in which it is customarily performed”. Since the drivers’ jobs did not include briefing the press about their employer’s business, how could they claim this was “in a manner different” when they never normally did it all?
Another issue was that company policy prohibited this conduct and it would therefore leave the employees open to breach of contract claims. The judge made the point that if company policies could be disregarded under the umbrella of “protected action” then why couldn’t discrimination, or bullying, or safety policies be similarly ignored with impunity? Such a situation would be intolerable.
The upshot of this decision is that if an employer is threatened with public embarrassment by employees taking industrial action who are not normally involved in the activity of press briefings, and especially if it is prohibited by company policy, then there is a precedent for immediate relief from the court.
The judge declined to issue an injunction as sought by the employer, saying he had formed the view the drivers now understood the great risk they were running if they proceeded despite his ruling.