HR&IR Update | Appeal Bench Broadens Industrial Action Order in Victorian Nurses Dispute

6 December 2011

What happened?

You probably will have been reading about the Victorian Nurses dispute – with nurses taking industrial action across the state as part of claims for a new enterprise agreement.

A few weeks ago, a Full Bench of Fair Work Australia suspended the nurses' right to take protected industrial action for a 90 day period on the basis that the industrial action threatened endangered the personal safety, health and welfare of users of the public health system.

Despite this, most unusually, the industrial action continued – which led Commissioner Jones to make orders that the industrial action cease under section 418 of the Fair Work Act (colloquially known as 'section 418 orders').

However, her orders were limited. They did not apply to all industrial action – but only industrial action formally notified by the nurses union as part of its protected industrial action. 

The Victorian Hospitals’ Industrial Association appealed – seeking general orders against industrial action. The Full Bench upheld the appeal and issued general orders against all industrial action.
What does it mean?

The orders prohibit the nurses from taking industrial action for just over 2 weeks – until 12 December.

A Court (usually the Federal Court) has the power to issue an injunction to enforce a section 418 order.

The Fair Work Ombudsman has also been investigating whether the orders have been breached. 
Why is it important?

The dispute is a useful illustration of the operation of section 418 orders in practice.

Section 418 orders are the most common response of the employers to unprotected industrial action. They are quick, cheap and relatively effective and Fair Work Australia must grant the order if industrial action is threatened or occurring. Their only major limitation is that they do not apply to protected industrial action – they were available here because Fair Work Australia had earlier suspended the right to take protected industrial action.

The second Full Bench of Fair Work Australia adopted the approach that it is unnecessary for an order to specify the type of industrial action – but the order can be general in nature. Commissioner Jones had taken the approach that the order had to be confined to industrial action known to be occurring, but the Full Bench rejected this.

Finally, it is important to appreciate that the Fair Work Ombudsman will make inquiries following the making of any section 418 orders – not only to ensure that the unions and employees complied with them, but also to ensure that the employer complied with their obligations in relation to industrial action as well.
What should I do?

If you are likely to face industrial action in the near future, you should take a note of this decision.

Want more information?

Click here for the decision.