[2013] FWC 5124
The attached document replaces the document previously issued with the above code on 28
July 2013
Mr Follett’s name was inadvertently left off the original version of the Decision as Counsel
on behalf of the Applicant.
An errant paragraph number ([37]) has also been removed.
Alishan Megerdichian
Associate to Vice President Lawler
Dated 29 July 2013.
1
Fair Work Act 2009
s.424—Industrial action
Monash University
v
National Tertiary Education Industry Union
(B2013/1050)
VICE PRESIDENT LAWLER MELBOURNE, 28 JULY 2013
[1] This is an application by Monash University (Monash) for an order under s.424(1) of the Fair
Work Act 2009 (FW Act) suspending protected action presently being taken by the National Tertiary
Education Industry Union (NTEU) and its members.
[2] Section 424(1) provides:
424 FWA must suspend or terminate protected industrial action—endangering
life etc.
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.
(emphasis added)
[2013] FWC 5124
DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 5124
2
Background
[3] The current enterprise agreement covering the parties, the Monash University Enterprise
Agreement (Academic and Professional Staff) 2009, passed its nominal expiry date on 30 June 2012.
The parties commenced negotiations for a new agreement in late August 2012. There have been at
least 20 negotiation meetings. There a number of significant claims by both parties on which the
parties have been unable to reach agreement.
[4] On 24 April 2013 the NTEU obtained an order from the Commission for a protection action
ballot. That ballot was conducted and various forms of protected action were approved in accordance
with the FW Act.
[5] On 7 June 2013 the NTEU gave notice of intention to take protected industrial action
commencing on 14 June 2013. One of the forms of action notified was:
“a ban on the recording, or transmission to the employer, of assessment results, with the
exception of results for which an exemption has been granted by the NTEU
Exemptions Committee” (the Results Ban).
[6] Results for 2013 Semester 1 subjects were scheduled for release to students on 15 July 2013.
[7] The NTEU established an exemptions regime involving general exemptions for specified
categories of students and specific exemptions on application by individual students. 1 The categories
of general exemption have grown over time and presently include:
a. Students graduating at the end of Semester 1, 2013 (notified on 21 June 2013)
b. Students completing Honours in 2013 (notified 21 June 2013):
c. Students who have been granted a deferred exam (notified on 21 June 2013);
d. Students who have applied for mid-year Honours entry (notified on 21 June 2013);
e. Students who have applied for a course transfer within Monash (notified to on 21 June
2013);
f. Students in the Faculty of law who are applying for Practical Legal Training Courses
and/or clerkships and graduate positions with law firms (notified on 2 July 2013);
g. Students In the Faculty of Medicine, Nursing and Health Sciences who are required to
undertake clinical placements in Semester 2, 2013 (notified on 2 July 2013) - with the
exception of students in the school of Nursing and Midwifery;
h. Students applying for graduate entry into medicine through the GEMSAS process
(notified to Monash on 8 July 2013); and
i. Students in the Study Abroad programme and those applying to be part of the
Exchange Programme in 2014 (notified on 9 July 2013).
1 In relation to nurses, I note Dr Cockfield’s evidence that all fail results were notified so that nurses were able to proceed
with placements notwithstanding the continuation of the Results Ban in relation to nurses not otherwise exempted.
[2013] FWC 5124
3
(General Exemptions)
[8] On the evidence, and subject to three qualifications dealt with below, these categories covered
every category of student for whom it is foreseeable that by virtue of the category circumstance, the
student was exposed to a rational risk of adverse consequences. It will be noted that these categories
were added progressively.
[9] The NTEU posted information in relation to the exemption regime on its website. Monash sent
a general email to students inviting comment on the Results Ban. It also drew students’ attention to the
availability of exemptions by application to the NTEU.
[10] Students have been advised that they can consult their lecturer. Lecturers have been
encouraged to informally provide marks to students (while emphasising that the mark is\not final).
[11] The NTEU used a group of volunteer members to assess applications for special exemption.
Every effort appears to have been made to turn around such applications in an expeditious fashion.
The volunteer members could grant an exemption. If they considered that an exemption was
unwarranted, the application was then considered by a meeting of the Exemptions Committee. That
Committee contained a student representative.
[12] On the evidence at the hearing, the NTEU had processed 881 applications for special
exemption and had granted 660 of them. That is, 75% of applicants were granted an exemption.
[13] Protected industrial action in the form of the Results Ban has been engaged in since 14 June
2013 and continues. There is no definite end point for the operation of the Results Ban. The
requirement in s.424(1)(a) is satisfied. Accordingly, the Commission must make an order suspending
or terminating protected industrial action if it is satisfied that the criterion in s.424(1)(c) is established,
namely 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;” ...
[14] The University contends that the Results Ban is endangering the health or welfare of a large
number of students who constitute “part of” the population. The NTEU contends that the true level of
exposure to relevant endangerment is confined to a group of hypothesised individuals and not such as
to satisfy the requirement in s.424(1)(c).
Context
[15] The application in this case was accompanied by lengthy and detailed witness statements and a
large body of documentary evidence including a large volume of emails from students in the nature of
survey evidence. If the Commission is unable to determine an application within 5 days of filing it
must make an interim order suspending the protected industrial action to which the application relates
until the application is determined (s.424(4)).
[16] If the Results Ban is suspended then the NTEU’s members will be obliged to forthwith release
all results that have been withheld under the ban and the utility of the ban will be lost until the end of
Semester 2. It is the most effective form of action being taken lawfully as protected industrial action to
apply pressure to Monash in protracted enterprise bargaining.
[2013] FWC 5124
4
[17] It was nevertheless necessary to complete the hearing of the application before the 5 day
period expired otherwise the utility of the protected industrial action would be lost by default and that
would not be fair outcome. The application was heard on 25 and 26 July 2013. The 5 day period
expired at midnight on Saturday 27 July 2013. I made an order late in the evening of 27 July 2013 and
will provide these reasons on 28 July 2013.
[18] It is obvious that an appeal against this decision is almost inevitable given the positions of the
parties and what is at stake for each of them and because the matter is clearly arguable both ways. It
was necessary to publish these reasons quickly so as to facilitate an expedited appeal. In preparing
these reasons I did not have the advantage of a transcript nor the time to do justice to the detail of the
evidence and arguments of the parties.
[19] My decision in this case does not turn in any material degree on my assessment of witnesses in
the witness box. As it happens I formed a favourable view of all of the witnesses. Each struck me as
endeavouring to be truthful in their oral evidence. An appeal bench will be in as good a position as me
to assess whether Monash has made out its case on the documentary evidence and the transcript.
[20] Some of the witness evidence contains expressions of conclusion or opinion. Putting aside the
evidence of a psychologist called by Monash, Ms Trembath, I do not accord significant weight to such
expressions of conclusion or opinion.
Consideration
[21] The central issue for determination is whether the Results Ban “has threatened, is threatening,
or would threaten... to endanger the... health, or the welfare” of a groups of students at Monash who
can properly described as “part” of “the population” within the proper meaning of s.424(1)(c). In Coal
& Allied Operations Pty Ltd (1998) 80 IR 14 Guidice J, with whom Larkin C concurred, address the
meaning of the language that now finds expression in s.424 (at pp 32-33):
6.4 Causative of harm to specified public interests: “...is threatening to...
endanger ... or to cause damage to ... “
In the context, the verb “is threatening to” may be given its ordinary meaning in the
sense of giving an ominous indication of being the source or cause of a relevant
danger or damage. The industrial action must itself be giving ominous indication of
being the direct or reasonably proximate cause of effects that are productive of, or are
likely to be productive of a relevant danger, peril or damage to welfare or the
economy. The phrase imports the temporal element of the circumstance by using the
present continuous to require satisfaction as to there being a threatening situation
contemporaneous with the exercise of jurisdiction.
In the context, the words “to endanger” and “to cause” each import a direct
relationship, and a relatively high degree of causative impact in producing the
specified danger or damage. Construction of the phrases in this manner is consistent
with the constructions applied in a number of cases to similar expressions used in
Commonwealth anti-dumping legislation (ICI Australia Operations v Fraser (1992)
34 FCR 564 at 568-522 per Black CJ, Neaves and von Doussa JJ; Swan Port Land v
Minister for Small Business and Customs (1991) 28 FCR 134 at 144-145 per
Lockhart J).
6.5 “ ... the welfare of the population or of part of it ...”
[2013] FWC 5124
5
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. (emphasis added)
[22] The decision of the majority was restored by the High Court and the approach of Giudice J
was effectively endorsed (Coal & Allied Operations Pty Ltd v AIRC (2003) 203 CLR 194 at [27] per
Gleeson CJ, Gaudron and Gummow JJ). These passages have been applied by other members of the
Commission.
[23] In NTEIU v University of South Australia (2010) 194 IR 30 (Uni of SA) a Full Bench of Fair
Work Australia held
[7] Section 424 provides that Fair Work Australia (FWA) must make an order
suspending or terminating protected industrial action if it is satisfied that the action
threatens to endanger the life, the personal safety, health or welfare of the population
or part of the population or to cause significant damage to the Australian economy.
The effect of making an order suspending or terminating protected industrial action is
to bring to an end the right to take protected industrial action. This is achieved by the
removal of the protection or immunity which would otherwise attach to the action. The
termination of protected industrial action may also lead to FWA making a workplace
determination under Pt 2-5 of the Act (see ss 266 and 267).
[8] Within the scheme of the Act, the powers in relation to the suspension or
termination of protected industrial action are intended to be used in exceptional
circumstances and where significant harm is being caused by the action. This is clear
from the Explanatory Memorandum to the Fair Work Bill 2008:
“The Bill recognises that employees have a right to take protected industrial
action during bargaining. These measures recognise that, while protected
industrial action is legitimate during bargaining for an enterprise agreement,
there may be cases where the impact of that action on the parties or on third
parties is so severe that it is in the public interest, or even potentially the
interests of those engaging in the action, that the industrial action cease — at
least temporarily.
[2013] FWC 5124
6
It is not intended that these mechanisms be capable of being triggered where
the industrial action is merely causing an inconvenience. Nor is it intended that
these mechanisms be used generally to prevent legitimate protected industrial
action in the course of bargaining.” [paras. 1708-1709]”
(emphasis added)
[24] At first instance in the Uni of SA case Senior Deputy President O’Callaghan dealt with an
application that concerned a Results Ban at a university and as such has certain similarities with the
present case. In each case the NTEIU imposed a ban on the notification of exam results together with
an exemption regime. However, there are material differences in the two cases. The most significant
differences are that in the Uni of SA case there were no general exemptions and the employer did not
engage with the exemptions regime or publicise it. Here the union has applied general exemptions and
Monash has strived to assist students obtain results by engaging with the exemptions regime, seeking
expansion of the general categories and publicised the availability of exemptions to students. It has
behaved in a commendable fashion with a clear focus on student welfare.
[25] At first instance O’Callaghan SDP held:
[39] 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.
[40] 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.
[41] 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
[2013] FWC 5124
7
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.
[42] 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.
[26] This case must of course, be determined by reference to its own facts and circumstances as
they emerge from the particular evidence led by the parties in this case.
[27] In this case the nature of the harm threatened to a student population through the withholding
of exam results falls into two broad categories:
(i) Harm to health: Centrally, the adverse medical (mental health) consequences for
students of the additional stress and anxiety caused by the Results Ban. In a student
body inevitably there will be people suffering stress and anxiety in their life and some
who will already be suffering from a mental health condition that may be exacerbated,
even severely, by additional stress or anxiety in their life. There may be some for
whom the additional stressor may be the proverbial straw that broke the camel’s back leading
to the onset of mental illness. Even suicide is a hypothetical possibility.
(ii) Harm to welfare: Adverse effects on course or career progression as a result of the
delay in the notification of results. A delay can result in lost opportunities to graduate,
to pursue honours, to undertake required professional training, to undertake courses
with prerequisites. It can prevent an informed decision on course or career change. It
can imperil scholarships or scholarship payments where notification of results is a
prerequisite to continuation of a scholarship or the making of a scholarship payment.
There are other categories of harm identified in the evidence.
[28] There is no doubt that these effects are sufficient to ground a finding that a ban on the
publication of exam results can threaten to endanger the health and welfare of students affected by the
ban. So much is implicit in the string of cases in which orders have been issued to suspend industrial
action in form of a Results Ban. The real issue is whether the exemptions regime adequately abates
that threat of endangerment in the particular case.
[29] In relation to threatened endangerment of health in the present case, Ms Trembath was the sole
expert witness and the challenge to her evidence was carefully calibrated. Ms Trembath is a
psychologist albeit that she is not independent in the sense that she is employed by Monash with
responsibility for student welfare in relation to mental health. I do not discount the weight to be
accorded to her evidence on that account. Ms Trembath could not point to any particular student and
opined that the health or welfare of the student had been, is being or would be materially harmed by
the Results Ban. Her evidence going to the central issue was more general. In a manner that must be
accepted, she identified stress and anxiety as particular problems among the cohort of students and
particular plausible circumstances where a student, in the hypothesised circumstances, could suffer
mental health problems or an aggravation to existing mental health problems on account of not
[2013] FWC 5124
8
receiving a mark on account of the results ban. Ms Trembath could, form her position, predict adverse
health outcomes for some students as likely although she could not quantify the number.
[30] Ms Trembath made the obviously correct admission to the effect that the examination process
is ordinarily and naturally a source of stress and anxiety for many students.
[31] I note that the requirement in s.424(1)(c) is satisfied if protected industrial action “has
threatened, is threatening, or would threaten” relevant endangerment. This requires consideration of
past effects, present effects and future effects (found on the balance of probabilities).
[32] Mr Bourke SC for Monash placed particular weight on the NTEU’s own material, contending
that it demonstrated that the NTEU accepted that the Results Ban threatened to endanger the health or
welfare of students.
[33] The NTEU well understood, if only from the past decisions of the Commission and its
predecessors making orders under s.424 or a predecessor provision in relation to a results ban imposed
as protected industrial action in negotiations for an enterprise agreement with a university, that the
Commission would likely find that a Results Ban without an effective exemptions regime would result
in the statutory criteria in s.424(1)(c) being satisfied.
[34] The obvious purpose of the general and specific exemptions regime operated by the NTEU
was to address threats endangering the health or welfare of students arising from the Results Ban. The
NTEU’s position involves a pragmatic recognition of the effect of the course of prior decisions
involving Results Bans at a university. I do not consider that the NTEU’s actions or exemptions
regime constitute an admission that the requirement in s.424(1)(c) is met in all the circumstances of
the present case.
[35] I accept as correct the submission of Mr Niall SC for the NTEU that, on the proper
construction of s.424, the “protected industrial action” to which the test in s.424(1)(c) is being applied
is not simply a ban on the communication of results. The exemption regime is an integral part of the
protected industrial action. The test in s.424 is applied by reference to the actual impact of the actual
protected industrial action established by the evidence in a particular case. In this case any assessment
of threat of endangerment of health and welfare must take account of the exemptions regime.
[36] As noted above, the NTEU processed 881 applications for special exemption and had granted
660 of them – 75% of applicants were granted exemption.
[37] Senior Counsel for Monash relied on this high exemption rate as evidence that the test in
s.424(1)(c) was met. Not only because, given the rationale of the Results Ban and the NTEU’s implicit
recognition of its capacity to cause “significant student hardship” (Tab 9), the rate suggested that
significant harm was occurring and only enhanced the risk associated with error in decisions to refuse
an exemption (no doubt to save the work involved in identifying which applications no longer needed
to be processed because the student’s results were all published).
[38] I do not approach the evidence in that way. I find that the NTEU, through the minds of those
directing the campaign of protected industrial action, has been endeavouring to implement an
exceptions regime, including both general and specific exemptions that would negate threats of
endangerment to student health and welfare.
[39] Nevertheless, in an ordinary human way, the implementation of the Results Ban has been far
from perfect. The NTEU initially overlooked categories of student who would be exposed to practical
adverse effects and added these categories when they were identified - sometimes with a delay. The
[2013] FWC 5124
9
guidelines provided to members and published to assist students with exemptions focussed on course
and career progress effects and did not emphasise that exemption was available if a student’s health or
welfare was endangered, particularly on account of stress or anxiety. The NTEU suspended processing
of exemption applications shortly before the official results release date of 15 July 2013 because those
application could no longer be processed in time for official release after which, most of the students
who had sought an exemption would no longer need it because their results had been released.
However, it then required any applicants who still sought an exemption to submit a fresh application.
[40] Mr Bourke SC for Monash contended for at least three ways in which the list of general
exemptions was deficient.
(i) Nurses.
The NTEU changed its position in relation to students in Nursing and Midwifery. At
one point they were covered by an exemption and then later were removed. The
postulated prejudice to the class of students was inability to achieve practice
placements unless results were known. I accept Dr Cockfield’s evidence that all fail
results were notified so that nurses were able to proceed with placements
notwithstanding the continuation of the Results Ban in relation to nurses not otherwise
exempted.
(ii) Supplementary Exams
It is clear that the relevant general exemption implemented by the NTEU did not fully
encompass the class of students potentially prejudiced by missing an opportunity to
secure a supplementary exam. The relevant general exemption saw the release of fail
results where the mark was in the range 45 to 49 but not where the mark was less than
50 (other than in nursing where all fail results were in fact released). To secure a
supplementary exam a student must have secured a mark in the range 45 to 49 but also
to have passed all their other subjects. If a student was affected by the Results Ban
they would not necessarily be able to demonstrate passing all other subjects (e.g. a fail
below 45). In theory a student who has been notified of a fail in one subject with a
mark in the 45 to 49 range, but who has not received other results may not be able to
demonstrate the requirement for a fail in only one subject because the student may
have failed another subject with a mark less than 45. Such a student could approach
their lecturers in subjects with unreleased marks and expect to be informed of the mark
given by the lecturer in accordance with the exemptions regime or favourable
consideration for a special exemption.
(ii) External Transfer
The evidence demonstrates that a student wishing to pursue an external transfer from
Monash to another university may be frustrated in that attempt if their marks were
unavailable. The NTEU did not grant a general exemption to that class. Such students,
likely very small in number, could utilise the specific exemption mechanism.
[41] Mr Bourke SC correctly identified other imperfections in the implementation and operation of
the exemptions regime, including the likelihood that the exemptions regime would not work perfectly
in the future with the concomitant risk of error in the refusal of special exemption applications.
[2013] FWC 5124
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[42] I accept that some students who qualify for a general exemption have yet to receive their
marks. This included 99 students in the Arts Faculty. It is probable that failures of this sort have an
administrative origin that will be rectified within a short time.
[43] Monash has about 50,000 students. The Results Ban initially affected the whole of the student
body (because students had no way of knowing whether or not their exams were being marked by
academics taking part in the Results Ban)
[44] The Results Ban was notified on 7 June 2013. The student body became aware of the ban, no
doubt progressively, as it was publicised in various ways. In the period to 15 July 2013 the incidence
of stress and anxiety was reduced progressively as categories of exemption were added and as students
became aware of a category of exemption applying to them.
[45] After 15 July 2013 the class of students at risk from the ban was some 13,000 students who
did not receive all of their marks on the official release date of 15 July 2013. The remainder of the
student body have their results and there is no present or continuing threat of endangerment to their
health or welfare arising from the Results Ban.
[46] It is notable that among the many categories of harm hypothesised as threatened to particular
categories of student, Monash has not brought evidence of a single student who is put forward as an
example of a student who has actually suffered harm of the sort that it contends is threatened by the
Results Ban.
[47] Of course, Monash, as applicant, is not required to demonstrate that actual harm has occurred,
only that threatened endangerment of student health or welfare has occurred, is occurring or would
occur. It does not need to bring particular examples. However, given that the ban has been in place for
more than a month, the absence of particular examples of harm having been actually suffered by a
student having come to Monash’s attention says something about the magnitude of the risk of the
hypothesised harm actually occurring, notwithstanding the defects in the exemptions regime that were
addressed over time.
[48] I am satisfied that the inadequacies in the exemptions regime, particularly in its early form,
meant that there was a threat of endangerment to student welfare of the sort outlined in paragraph
[27](ii) during at least part of the period to 15 July 2013. There was also a threat of endangerment to
student health, of the sort outlined by Ms Trembath, in that early period before the full set of general
exemptions had been established.
[49] The issue then becomes whether that threat of endangerment exists presently and would
continue into the relevant future for that group of students who still have not received their all marks
for Semester 1.
[50] Notwithstanding that the NTEU was slow to expand its categories of general exemption and
despite the imperfections in its materials identified by Mr Bourke SC, I find that the NTEU has
endeavoured to produce an exemption regime that properly abates the threat of endangerment to
student health and welfare arising from the non-communication of results and that the regime as it is
now in place makes proper provision for general exemptions and operates a system of special
exemptions that is likely to see a student who can demonstrate a threat to their health or welfare
exempted.
[51] In assessing applications for special exemption the NTEU is erring on the side of caution and
granting an exemption to anyone who can point to any circumstances of hardship. I am satisfied that
any application for exemption properly based on heightened stress or anxiety will be allowed. There is
[2013] FWC 5124
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no evidence that the Exemptions Committee has rejected any application for special exemption on the
grounds of heightened stress or anxiety. I accept the evidence of Dr Cockfield as a key member of the
Committee that such circumstances would attract the grant of a special exemption.
[52] I am satisfied that the NTEU is now conscientiously endeavouring to operate its exemption
regime in a manner that will exempt any student who had suffered, was suffering or would suffer
endangerment to his or her health or welfare.
[53] Mr Burke SC placed particular reliance on emails from students received since the official
results release date of 15 July 2013 (Annexure A to the Monash Outline of submissions which I treat
as being in evidence before me). Dr Cockfield produced a schedule that showed the overwhelming
majority of those students had either been granted a special exemption or had not applied for a special
exemption. There is no email from a student who should have been given an exemption but has been
refused one. Mr Bourke SC placed emphasis on one email from a mother who was in remission from
cancer and suffering significant personal hardship. She would undoubtedly qualify for an exemption
and will no doubt receive one.
[54] I accept that the system will not work perfectly – that there is a risk of mistake and that
disengaged students remain a problem. In the practical world it is impossible to totally extinguish the
hypothesised risk.
[55] If, contrary to the decision in Uni of SA, the words of s.424(1)(c) are given their ordinary
meaning and applied to the facts in the present case then Monash has made out the criterion. Monash
has demonstrated, the existence of students among the remaining group of 13,000 who, despite the
exemptions regime, will be suffering heightened stress and anxiety on account of not having received
their results, with all the associated mental health risks identified by Ms Trembath that can properly be
hypothesised. The number cannot be quantified but on the balance of probabilities some such students
exist albeit the number is likely now to be small. It is also possible to plausibly hypothesise that a few
students who may have external course transfers frustrated and thereby suffer material harm to their
welfare and that a small number of students may possibly be at risk of some harm.
[56] However, given the approach laid down in the Uni of SA case, in my view a proper application
of s.424(1) does not allow for a finding that the criterion in s.424(1)(c) is established presently or in
the relevant future.
[57] However, that said, I confess to some bafflement about what the Full Bench intended when it
stated that “exceptional circumstances” were required. Such a requirement is not explicit on the
language of s.424(1). Examples can readily be constructed were a ban commonly applied is applied in
a common industrial context but where health or welfare is certainly endangered. Can those
circumstances be described as “exceptional” in a dictionary sense? In my view the remark of the Full
Bench was directed towards the quality or magnitude of the threat of endangerment that the Parliament
intended should be sufficient to activate the obligation to issue an order suspending or terminating
protected industrial action.
[58] In my view, what the Full Bench was seeking to convey was that, for the purposes of
s.424(1)(c), the threat must be clear and the endangerment to health or welfare must be significant.
Threats of endangerment that are small or too remote or speculative will not be sufficient. It may be
inferred that the Full Bench in the Uni of SA case did not consider the circumstances of the Results
Ban in that case as falling foul of any requirement for “exceptional circumstances” - the Full Bench
upheld the decision of O’Callaghan SDP to make an order under s.424(1).
[2013] FWC 5124
12
[59] It will commonly be the case that protected industrial action will adversely affect third parties
in some way or other. The employer’s clients or customers will typically be affected by delays in the
delivery of goods or services. Stress or anxiety as a result of delay in the provision of goods or
services will be a common effect of industrial action. The Full Bench drew particular attention to the
Explanatory Memorandum which noted:
“Nor is it intended that these mechanisms be used generally to prevent legitimate
protected industrial action in the course of bargaining.”
[60] In relation to past effects, even adopting this approach, for the reasons concluding at paragraph
[46] above I find that the Results Ban did have effects that met the description in s.424(1)(c) in
that it did threaten to endanger student welfare in a significant way during at least a portion of the
period to 15 July 2013.
[61] Given the way in which the exemptions regime is now operating and the way in which it will
likely operate in the future, I do not consider that the present and continuing threats of endangerment
to health or welfare of the remaining group of students to be sufficiently large to attract the description
“significant”. The exemptions regime, notwithstanding its minor continuing defects, is adequate in a
practical, real-world sense to abate the threat of endangerment on account of the Results Ban to a level
that falls below the threshold required by s.424(1).
[62] I am satisfied that any student who is suffering heightened stress or anxiety or genuine
hardship because they have not received their marks will receive a specific exemption. The risk in
relation to hypothesised students who do not engage with the process, or who do not have ready access
to the internet, exists theoretically but is, I think, too remote or speculative to come within the meaning
intended by s.424(1)(c).
[63] In relation to present and future effects, I find that the Results Ban is not threatening to
endanger the health or welfare of part of the population (constituted by the students who have not
received results as a consequence of the Results Ban) within the proper meaning of s.424(1)(c).
[64] Nevertheless, the finding in paragraph [60] means that I “must” make an order suspending or
terminating protected industrial action. However, I have concluded that endangerment of health or
welfare of students in the relevant sense is not presently threatened or, on the balance of probabilities,
threatened in the relevant future. It seems to me that where the requirement in s.424(1)(c) is only
satisfied in the past, but not presently or prospectively, the proper exercise of discretion may call only
for a nominal suspension. Section 424 has a protective purpose. That protective purpose is not served
when the risk calling for protection has abated. The important Convention rights that underpin the
statutory right to take protected action ought not be curtailed when relevant risk is no longer
threatened. I consider it unfair to the NTEU to deprive it of its most effective form or protected
industrial action, and its right to take other protected industrial action authorised in the ballot to
resolve what appears to be an impasse in protracted enterprise bargaining, when there is no present or
continuing threat of the relevant kind. In the exercise of my discretion I ordered a suspension of
protected industrial action for a nominal period of one hour from midnight on 27 July 2013, that is for
a period when it will have no practical impact on the Results Ban.
[2013] FWC 5124
13
VICE PRESIDENT
Appearances:
Mr. J. L. Bourke SC and Mr. M. Follett of Counsel on behalf of the Applicant
Mr. R. M. Niall SC of Counsel on behalf of the Respondent
Hearing details:
2013:
Melbourne,
25 and 26 July.
Final written submissions:
25 July 2013.
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